On May 24, 2021, Governor Murphy signed Executive Order No. 242, which rescinded, as of May 28, 2021, the mask and social distancing mandates for businesses that are open to the public, but retained those mandates for businesses generally closed to the public.
On May 26, 2021, however, Governor Murphy signed Executive Order No. 243, which clarified that beginning June 4, 2021 businesses that are generally closed to the public, including those that operate in an office building, may allow employees who can verify they are fully vaccinated from COVID-19 to forgo masking and social distancing while within its office space. If, however, the employer is unable to determine an employee’s vaccination status or if an employee is not fully vaccinated, the employer must continue to require those employees to wear masks and to practice social distancing while in the office space. Further, as of June 4, 2021, employers will be permitted to allow customers, visitors and other authorized individuals to enter the office space without requiring the use of a mask or adhering to social distancing, regardless of the individual’s COVID-19 vaccination status.
Governor Murphy explained, “businesses that are generally closed to the public and have limited visitors may reasonably be prepared to ascertain an individual’s vaccination status, or to craft a policy that handles such visitors on a more individualized basis, as compared with a business that is generally open to the public and has the potential for high foot traffic in the normal course of its operations.” The Governor further observed, “it is reasonable to permit employers who determine that an employee is fully vaccinated to allow that employee to enter the worksite without a mask, and to allow employers that oversee businesses that are not open to the public to establish their own policy regarding customers, visitors, and other authorized individuals to their premises.”
Executive Order No. 243 provides useful, long-awaited guidance to employers in cases where an employer is unable to determine an individual’s vaccination status or where an individual is not fully vaccinated, by requiring that unvaccinated employees continue to wear masks and practice social distancing in the office space per Executive Order No. 192. Moreover, Executive Order No. 243 permits employers to establish written policies that impose stricter requirements regarding mask wearing and social distancing in indoor settings for its employees, where otherwise consistent with federal and state law, even though masking and social distancing is no longer required by state law. An employer may also establish a policy that requires customers, visitors and similar individuals entering a worksite to wear a mask and/or social distance from others.
Additionally, Executive Order No. 243 specifically rescinds the requirement that employers accommodate remote working arrangements and reduce on-site staff to the minimal number necessary to operate the business. These requirements were set forth in the initial Stay at Home Order (Executive Order No. 107) issued in March 2020.
Businesses are cautioned, however, that Executive Order No. 243 does not supersede any other requirements imposed on employers per Executive Order No. 192 to implement efforts to create a safe working environment, including the requirement to engage in daily health checks of all employees.
Employers are encouraged to establish a return-to-work plan, and to review their COVID-19 policies relative to mask wearing and social distancing as to employees, customers, visitors and other authorized individuals who enter the work site. Employers should also re-visit their travel/quarantine policies to ensure they align with current federal and state guidelines, and also reflect the employer’s current position as to whether employees who travel must quarantine before returning to the work site.
Our team of employment law attorneys continues to assist businesses with their COVID-19 compliance and return to work efforts.
Michael Shadiack is the Chair of Connell Foley’s Labor and Employment Practice Group. Representing a broad spectrum of employers and management personnel in the private and public sectors, he provides litigation defense and ...