On October 28, 2020, Governor Murphy signed Executive Order (“E.O.”) 192 in response to the “upticks in the rate of reported new” COVID-19 cases and in light of the number of individuals who have returned to in-person work. Beginning on November 5, 2020, at 6:00 a.m., E.O. 192 institutes a number of mandatory health and safety protocols that apply to all businesses (including non-profit, governmental, and educational employers) in the State.
The mandatory protocols include the following:
Employers must require anyone at worksites (including employees, customers, and visitors) to keep six feet of distance between one another, to the extent possible. This includes, but is not limited to, in common areas, breakrooms, and entrances.
If it is impossible to maintain a six-foot distance, employees must wear face masks and the employer must install physical barriers, if possible.
Everyone in the workplace must wear masks unless:
- Under the age of two;
- It is impractical, e.g., eating; or
- A service cannot be performed on someone wearing a mask, e.g., dental work.
Employers must also wear masks (except as described above), unless the employee is:
- At that employee’s workstation and the workstation is six feet from other individuals; or
- Alone in a walled office.
Employers must make masks available to employees at the employer’s expense.
Businesses generally can deny employees or visitors access to the worksite for not wearing a mask, but they cannot deny access where the denial would violate state or federal law. For example, if an employee or customer cannot wear a mask because of a disability, the employer should provide a reasonable accommodation (such as offering an individual the opportunity to wear a face shield in lieu of a mask), unless doing so would cause a hardship for the employer.
While businesses can ask employees for medical verification of a disability, they cannot seek medical documentation from a visitor unless otherwise required by law.
These mask protocols apply to all employers, except school districts subject to E.O. 175, which sets standards specifically for those employers.
Sanitization and Hygiene
Businesses must provide sanitization materials (e.g., 60% alcohol hand sanitizer and USEPA-approved wipes) to employees, customers, and visitors at no cost.
Businesses also must ensure hand hygiene. Notably, employers must give employees adequate break time for repeated handwashing and access to appropriate facilities. Employers can require employees to wear gloves, in addition to hand washing, but if they do, they must pay for the gloves.
Finally, businesses must routinely clean and disinfect high-touch areas (consistent with CDC and DOH guidelines). These areas include, but are not limited to, bathrooms, doorknobs, common equipment, handrails, and elevator buttons.
Businesses are now required to institute mandatory health checks. E.O. 192 does not mandate the extent of the required checks but notes that they may include temperature screening, self-assessment checklists, and/or visual symptom checks.
Employers must stay mindful of confidentiality concerns as well as federal guidance and laws when instituting health checks. For example, employers generally must keep confidential health information separate from other personnel records. Additionally, employers cannot ask employees medical questions about family members but may ask if an employee has had close contact with anyone diagnosed with COVID-19.
Symptomatic Employees and Positive COVID-19 Screens
Consistent with CDC guidelines, employers must immediately send home any symptomatic employees. If an employee is sent home, certain employers may be required to provide emergency sick leave benefits under the Families First Coronavirus Response Act and/or to allow impacted employees to use accrued leave (pursuant to New Jersey law or company policy).
Employers must also immediately notify employees who have been exposed to someone who tests positive for COVID-19.
Consistent with confidentiality requirements, employers should not notify employees of the name of the employee who exposed them to COVID-19; instead, they should only be notified that they may have been exposed.
Finally, employers must, consistent with CDC procedures, clean and disinfect the worksite after an employee has been diagnosed.
Follow CDC and Department of Health Guidelines
E.O. 192 makes clear that employers should continue to follow CDC and Department of Health guidelines. For example, while not directly addressed in the Executive Order, employers should follow CDC guidelines about addressing close contact to an individual who is COVID-19 positive or presumptively positive, including, but not limited to, requiring a 14-day quarantine.
The Department of Health and State Director of Emergency Management may also impose additional requirements, under the authority of E.O. 192. Employers should continue to monitor ongoing guidance to ensure compliance with the E.O. 192.
Miscellaneous Provisions of E.O. 192
In addition to instituting numerous health and safety-related mandates, E.O. 192 also rescinded paragraph 2, subsection (c) of E.O. 142. With that change, construction business may now have "worksite meetings, inductions, and workgroups" with more than 10 individuals.
Exemptions from E.O. 192
E.O. 192 applies to almost all businesses that operate in New Jersey. The limited exceptions are:
- The United States Government;
- Religious institutions, but only to the extent the application of the protocols would prohibit the free exercise of religion; and
- When the mandates interfere with the discharge of the operational duties of first responders, emergency management personnel, emergency dispatchers, health care personnel, public health personnel, court personnel, law enforcement and corrections personnel, hazardous materials responders, transit workers, child protection and child welfare personnel, housing and shelter personnel, military employees, and governmental employees engaged in emergency response activities.
In other words, only the federal government is truly exempt from E.O. 192. All other partially-exempt employers are only exempt to the extent they impact the ability of those employers to operate.
Complaint Procedures and Violations of E.O. 192
Businesses that fail to comply with E.O. 192 may be found guilty of a disorderly persons offense and subject to a $1,000 fine and/or up to six months in jail. Business may also be ordered to shut down for failing to comply with E.O. 192.
While individuals do not have a private right of action to enforce the requirements of E.O. 192, they are authorized to file complaints with the Department of Health and/or Department of Labor and Workforce Development.
During this global pandemic, employers must stay aware of their ever-evolving obligations to not only their employees but also customers and visitors. While new employer mandates may add unanticipated operational costs and may seem inconvenient, failure to comply with these mandates is likely to cost much more for the employer in the long term.
About O’Toole Scrivo, LLC
O'Toole Scrivo is a carefully crafted mid-sized law firm of recognized subject matter experts practicing primarily in New York and New Jersey. The firm combines large-firm expertise with small-firm attention to client needs, representing businesses, insurance companies, and government entities. O'Toole Scrivo is committed to delivering creative and timely results for the most high-profile and complex matters.