By Rebecca J. Rosen, Esq.

On October 28, 2020, Governor Murphy signed into law Executive Order No. 192 (the “Order”), providing mandatory health and safety standards to protect workers during the pandemic. Effective as of 6:00 a.m. on November 5^th, all employers, at a minimum, must require individuals at the worksite to maintain at least six feet of distance from others to the extent possible and require employees and visitors to wear masks when entering the worksite, subject to limited exceptions. 

Requirements of the Order

Pursuant to the Order, every business, non-profit, and governmental or educational entity (“employer”), that requires or permits its workers to be physically present at a worksite to perform work is required to abide by the following requirements[1]:

Maintaining Social Distance

1.      Require that individuals maintain at least six feet of distance from one another to the extent possible, including during (a) meetings, orientations and other activities that would require individuals to be present in a single room or space in close proximity, (b) in common areas such as restrooms and breakrooms, and (c) when individuals are entering and exiting the workplace. In addition, where the nature of the employee’s work or the work area does not allow for six feet of distance to be maintained at all times, employers shall ensure that each employee wears a mask and shall install physical barriers between workstations wherever possible.

Wearing of Face Masks[2]

2.      Require employees, customers, visitors, and other individuals entering the worksite to wear cloth or disposable face masks while on the premises, in accordance with CDC recommendations, except where the individual is less than two years of age or where it is impracticable for an individual to wear a face mask (such as when eating or drinking). Employers may permit employees to remove face masks when situated at their workstations and more than six feet from other individuals, or when an individual is alone in a walled office. Employers must make face masks available at their expense. 

Employers may deny entry to the worksite to any employee who declines to wear a face mask, except when doing so would violate State or federal law. Where an employee cannot wear a mask because of a disability, an employee may be required to provide the employee with a reasonable accommodation unless doing so would be an undue hardship on the employer’s operations. In addition, an employer may require employees to produce medical documentation supporting claims that they are unable to wear a face mask due to a disability.

Employers may deny entry to the worksite to any customer or visitor who declines to wear a face mask, except when doing so would violate State or federal law. The employer may be required to provide a customer or visitor who declines to wear a mask due to a disability services or goods via a reasonable accommodation, unless such accommodation would pose an undue hardship on the employer. Where a customer or other visitor declines to wear a face mask on the premises due to a disability, neither the employer nor its employees shall require the individual to produce medical documentation verifying the condition, unless production is otherwise required by State or federal law. 

 Sanitation and Hygiene

3.      Provide sanitation materials, such as hand sanitizer that contains at least 60% alcohol and sanitizing wipes that are approved by the EPA, to employees, customers, and visitors at no cost to those individuals.

 4.      Ensure that employees practice regular hand hygiene and provide employees break time for repeated handwashing throughout the workday and access to adequate hand washing facilities. Employers may adopt policies that require employees to wear gloves in addition to regular hand hygiene, provided that the employer provides such gloves to employees. 

 5.      Routinely clean and disinfect all high-touch areas in accordance with DOH and CDC guidelines, particularly in space accessible to employees, customers, or other individuals, including restrooms, handrails, door knobs, other common surfaces, safety equipment, and employee used equipment. In addition, ensure cleaning procedures following a known or potential exposure are in compliance with CDC recommendations.

 Health Checks and Procedure for When an Employee Falls Ill

6.      Prior to each shift, conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, consistent with CDC guidance, including latest CDC guidance regarding COVID-19 symptoms. 

7.      Immediately separate and send home employees who appear to have symptoms consistent with COVID-19 illness upon arrival at work or who become sick during the day. Employers subject to the New Jersey Earned Sick Leave Law, New Jersey Family Leave Act, N.J.S.A. 34:11D-12 and/or federal leave laws must continue to follow those requirements, including allowing individuals to use accrued leave, when requiring employees to leave the workplace. 

 8.      Promptly notify all employees of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the ADA and any other applicable laws. 

9.      Clean and disinfect the worksite in accordance with CDC guidelines when an employee at the site has been diagnosed with COVID-19. 

10.  Continue to follow guidelines and directives issued by the New Jersey DOH, the CDC and OSHA, as applicable to maintain a clean, safe, and healthy workplace. 

 Other Changes

11. Paragraph 2, subsection (c) of Executive Order No. 142—requiring all businesses engaged in construction projects in the State to limit worksite meetings, inductions, and workgroups to groups of fewer than 10 individuals—is rescinded. 

Enforcement of the Order

Pursuant to the Order, the Commissioner of the Department of Labor and Workforce Development (DOLWD), in consultation with the Commissioner of the DOH, is authorized to provide support efforts to enforce the requirements of the Order by (a) establishing an intake mechanism to receive complaints from individuals working in the State that are subject to the COVID-19 specific health and safety protocols of the Order; (b) creating a process for consideration of such complaints; and (c) coordinating with the Commissioner of the DOH and any other applicable State entity to establish a process to address such complaints and to raise potential deficiencies in compliance with the employer, which shall provide employers with an opportunity to correct the alleged or confirmed deficiency.[3] 

The Commissioner of the DOH shall establish a process for investigation of complaints received and, where necessary, may perform workplace inspections and issue subpoenas for information. The Commissioners of DOH and DOLWD shall, where necessary, coordinate with relevant federal and State agencies, including OSHA. The Commissioner of DOLWD is further directed to provide compliance and safety training for employers and employees. 

It shall be the duty of every person or entity in the State or doing business in the State and members of the governing body and every official, employee, or agent of every political subdivision in the State and of each member of all governmental bodies, agencies, and authorities in the State, to cooperate fully in all matters concerning the Order. Nothing in the Order shall be considered to create a private right of action to enforce the requirements of the Order 

Penalties for violations of the Order may be imposed under, among other statutes, N.J.S.A. App. A:9-49 and -50. Any employer that fails to adhere to the protocols outline in the Order or to any subsequent requirements issued by the Commissioner of the DOH is subject to, among other actions, closure by the Commissioner of the DOH pursuant to N.J.S.A. 26:13-8. 

Schenck Price will continue to monitor legislative developments at the state, federal and local level, and will provide further updates on future legislative enactments.  If you have any questions about the laws referenced in this Alert, please contact the author at rjr@spsk.com.

 

DISCLAIMER:  This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.