The order imposes new requirements on employers without providing any liability protection if they are followed. Rather, it gives the New Jersey Department of Health (DOH) and Department of Labor and Workforce Development (DOLWD) teeth to enforce the new protocols with an online complaint system that could lead to subpoenas and workplace inspections. Because the state may force businesses that violate the order to close, employers should review their policies and practices to ensure compliance, and consult with an attorney if they learn a complaint has been filed. 

Health and Safety Protocols

The order, which takes effect at 6 a.m., November 5, 2020, requires all businesses with physically present workers (employers) to implement 10 new health and safety protocols.[1]

1. Employers must require individuals in the workplace to keep six feet apart, and when that is not possible, must ensure each employee wears a cloth or disposable face mask, and install physical barriers wherever possible.
2. Employers must require individuals in the workplace to wear masks, except those under two years of age or where impractical (e.g. an individual is eating, drinking or being provided a service that cannot be performed while wearing a mask).
   1. Masks must be made available to employees at the employer’s expense.
   2. Employees can remove masks when they are in their own workspace and six feet apart or alone in a walled-in office.
   3. Employers can turn away workers, customers and visitors who refuse to wear a mask, unless that violates other state or federal law.
3. Employers must provide sanitation materials such as Environmental Protection Agency (EPA)-approved hand sanitizers and wipes at the employer’s expense.
4. Employers must ensure employees maintain proper hygiene by providing break time and access to handwashing facilities. An employer may also require gloves if it provides and pays for them.
5. Employers must routinely clean and disinfect all high-touch areas in accordance with DOH and Centers for Disease Control and Prevention (CDC) guidelines.
6. Employers must conduct “daily health checks” before shifts, consistent with CDC guidance. Health checks include, by example, temperature screenings and self-assessment/health checklists/questionnaires.
7. Employers must separate and send home sick employees, consistent with CDC guidance, and compensate employees for that time off in accordance with applicable law.
8. Employers must notify employees of any known exposure to COVID-19 (consistent with Americans with Disabilities Act (ADA) confidentially requirements).
9. Employers must disinfect worksites when known COVID-19 exposure occurs.
10. Employers must continue following CDC guidelines.

The order authorizes the Commissioner of the DOH to impose additional protocols on employers. It also rescinds a prior requirement that employers limit worksite meetings to groups of fewer than 10 individuals.

These requirements also apply to customers and visitors to an employer’s facilities.

Enforcement of the Protocols

The order authorizes the Commissioner of the Department of Labor and Workforce Development (DOLWD), in consultation with the Commissioner of the DOH, to help enforce the protocols. These support measures include creating an intake system for complaints by workers and a process for investigating and addressing those complaints. Gov. Murphy has indicated that an online intake system could be up and running by the week of November 2. The Commissioner of the DOH will have the authority to investigate complaints through workplace inspections and subpoenas.

Any employer that fails to adhere to the protocols could face closure by the Commissioner of the DOH pursuant to N.J.S.A. 26:13-8.

Education of Employers and Workers

The order requires the Commissioner of the DOLWD to 1) provide employers with compliance and safety training focused on the protocols, and 2) develop notices and materials to inform workers of their rights under the order.

An important note for employers – this order may trigger other obligations including protected leave and whistleblower protections.