Governor Murphy signed Executive Order No. 192 (the Order) on October 28, 2020. The Order applies to every business, non-profit, and governmental or educational entity in New Jersey and imposes strict requirements to curb the spread of the COVID-19 pandemic.
The Order mandates compliance starting at 6:00 a.m. on November 5, 2020, and sets forth numerous requirements excerpted below:
- Social Distancing Requirement – Wherever possible, all in-person employment settings must enforce a minimum distance of six feet to prevent close person-to-person contact. If, however, the nature of an employee's business or profession precludes compliance with the mandated six feet of distance, each employee shall wear a mask and, if possible, employers shall install physical barriers between workstations.
- Face Mask Requirement – Employers must require employees, patrons, clients and other visitors to wear face masks pursuant to Centers for Disease Control (CDC) recommendations. Employers must supply such face masks to employees at no charge or cost to the employees. This provision does not apply to employees attending a workstation in a walled-off office space or more than six feet from other individuals at a workplace. Moreover, the mask requirement also excludes those under two years of age and circumstances wherein “it is impracticable for an individual to wear a face mask [such as when the individual is eating or drinking or where a service being provided by the employer cannot be performed on an individual who is wearing a mask].”
Should an employee refuse to comply with the face mask requirement citing a medical disability, the employer may require the production of proper documentation supporting the inability to wear an appropriate face mask. Per federal and state law, the employer must then engage in an “interactive process” with the employee to determine if any reasonable accommodation can be offered to the employee that would not impose an undue hardship on the employer.
- Additional Workplace Precautions – Employers shall conduct daily health checks of employees. The Order — while not requiring any specific screening format or tests — suggests “temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, consistent with CDC guidance, including latest CDC guidance regarding COVID-19 symptoms, consistent with the confidentiality requirements of the ADA, NJLAD and any other applicable laws, and consistent with any guidance from the Equal Employment Opportunity Commission (“EEOC”) and the New Jersey Division on Civil Rights.”
Employers must encourage proper handwashing hygiene in the workplace and provide break time for repeated handwashing throughout the workday. Further, “[e]mployers may adopt policies that require employees to wear gloves in addition to regular hand hygiene.” Should an employer require employees to wear gloves, the employer must provide gloves to the employees.
- Handling of Known or Suspected COVID-19 Cases – Employers must “immediately separate and send home employees who appear to have symptoms of COVID-19.”
The employer must also promptly notify all employees of any known COVID-19 diagnosis, while maintaining the confidentiality of the infected employee’s name. The employer must then also disinfect the worksite in accordance with CDC guidelines.
- Enforcement – The Order authorizes the Commissioner of the Department of Labor (DOL) in consultation with the Commissioner of the Department of Health (DOH) to provide enforcement support. Such support includes establishing a mechanism to receive, review and address individual administrative complaints that an employee may file against an employer believed to be non-compliant with the Order. The Order, however, expressly denies individuals a private right of action to sue the employer in court over an employer’s non-compliance with the Order.
- Penalties for Non-Compliant Conduct – The Order provides for severe penalties for non-compliance. The Order provides that “[a]ny employer that fails to adhere to the protocols outlined in this 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.” (emphasis added).
- Impact on Local Rules or Regulations – No municipality or county rules or regulations enacted before or after the Order may trump or conflict with the Executive Order 192.
Employers are advised to read Executive Order No. 192, and review their policies and employment practices to ensure compliance with the Order by November 5, 2020.
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 ...
Scott Humphreys is a litigation associate practicing in the areas of labor and employment, and environmental law. Prior to joining Connell Foley, Scott was a law clerk to the Hon. Sallyanne Floria, A.J.S.C. of the Superior Court of ...