New Jersey: Latest COVID-19 Executive Order Adds Stringent Protocols on Essential Businesses and Halts Most Non-Essential Construction

Sign up for our Coronavirus roundup email.
Visit our Coronavirus resource page.

Seyfarth Synopsis:  On April 8, 2020, Governor Murphy signed Executive Order 122, which requires that all essential retail, manufacturing and warehousing businesses and businesses engaged in essential construction projects adopt specific policies and procedures aimed at limiting the spread of COVID-19 in New Jersey.  The Order also requires that all businesses authorized to maintain some degree of in-person operations implement cleaning protocols, and directs that all non-essential construction projects cease.  The Order goes into effect on Friday, April 10, 2020 at 8:00 p.m.

As described in our prior alerts here, here, and here, Governor Murphy and the State Director of Emergency Management have executed a series of executive orders and administrative orders in response to COVID-19 that have, among other things, increasingly restricted business operations in the State.  The Governor’s most recent Executive Order expands those restrictions, and directs the following.

Requirements Applicable to Essential Retail Businesses

Essential retail businesses must adopt policies that include, at minimum, the following requirements:

• Limit occupancy at 50% of the stated maximum store capacity, if applicable, at one time;
• Establish hours of operation, wherever possible, that permit access solely to high-risk individuals, as defined by the CDC, at designated time(s);
• Install a physical barrier, such as a shield guard, between customers and cashiers/baggers wherever feasible, or otherwise ensure six feet of distance between those individuals, except at the moment of payment and/or exchange of goods;
• Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
• Provide employees break time for repeated handwashing throughout the workday;
• Arrange for contactless pay options, pickup and/or delivery of goods wherever feasible. Such policies shall, wherever possible, consider populations that do not have access to internet service;
• Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to staff and customers;
• Require frequent sanitization of high-touch areas like restrooms, credit card machines, keypads, counters and shopping carts;
• Place conspicuous signage at entrances and throughout the store, if applicable, alerting staff and customers to the required six feet of physical distance;
• Demarcate six feet of spacing in check-out lines to demonstrate appropriate spacing for social distancing; and
• Require workers and customers to wear cloth face coverings while on the premises, except where doing so would inhibit that individual’s health or where the individual is under two years of age, and require workers to wear gloves when in contact with customers or goods.
  • On this requirement, the Order further specifies that: (1) businesses must provide, at their expense, face coverings and gloves for their employees; (2) if a customer refuses to wear a cloth face covering for non-medical reasons and if such covering cannot be provided to the individual by the business at the point of entry, then the business must decline entry to the individual, unless the business is providing medication, medical supplies, or food, in which case the business policy should provide alternate methods of pickup and/or delivery of such goods; (3) if a worker or customer declines to wear a face covering on store premises due to a medical condition that inhibits such usage, the business (and its staff) cannot require the individual to produce medical documentation verifying the stated condition; and (4) the business’ policy should not prevent workers or customers from wearing a surgical-grade mask or other more protective face covering if the individual is already in possession of such equipment, or if the business is otherwise required to provide such worker with more protective equipment due to the nature of the work involved.

Requirements Applicable to Manufacturing Businesses, Warehousing Businesses and Businesses Engaged in Essential Construction Projects

Manufacturing businesses, warehousing businesses, and businesses engaged in essential construction projects must adopt policies that include, at minimum, the following requirements:

• Prohibit non-essential visitors from entering the worksite;
• Limit worksite meetings, inductions, and workgroups to groups of fewer than ten individuals;
• Require individuals to maintain six feet or more distance between them wherever possible;
• Stagger work start and stop times where practicable to limit the number of individuals entering and leaving the worksite concurrently;
• Stagger lunch breaks and work times where practicable to enable operations to safely continue while utilizing the least number of individuals possible at the site;
• Restrict the number of individuals who can access common areas, such as restrooms and breakrooms, concurrently;
• Require workers and visitors to wear cloth face coverings, in accordance with CDC recommendations, while on the premises, except where doing so would inhibit the individual’s health or the individual is under two years of age, and require workers to wear gloves while on the premises;
  • Similar to the requirements for essential retail businesses: (1) businesses must provide, at their expense, such face coverings and gloves for their employees; (2) if a visitor refuses to wear a cloth face covering for non-medical reasons and if such covering cannot be provided to the individual by the business at the point of entry, then the business must decline entry to the individual; (3) if a worker or visitor declines to wear a face covering on the premises due to a medical condition that inhibits such usage, the business (and its staff) cannot require the individual to produce medical documentation verifying the stated condition; and (4) the business’ policy should not prevent workers or visitors from wearing a surgical-grade mask or other more protective face covering if the individual is already in possession of such equipment, or if the businesses is otherwise required to provide such worker with more protective equipment due to the nature of the work involved.
• Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
• Limit sharing of tools, equipment, and machinery;
• Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to workers and visitors; and
• Require frequent sanitization of high-touch areas like restrooms, breakrooms, equipment, and machinery.

Requirements Applicable to Essential Retail Businesses, Warehousing Businesses, Manufacturing Businesses, and Businesses Performing Essential Construction Projects

All essential retail businesses, warehousing businesses, manufacturing businesses, and businesses performing essential construction projects must also adopt policies that include, at minimum, the following requirements:

• Immediately separate and send home workers who appear to have symptoms consistent with COVID-19 illness upon arrival at work or who become sick during the day;
• Promptly notify workers of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the Americans with Disabilities Act and any other applicable laws;
• Clean and disinfect the worksite in accordance with CDC guidelines when a worker at the site has been diagnosed with COVID-19 illness; and
• Continue to follow guidelines and directives issued by the New Jersey Department of Health, the CDC and the Occupational Health and Safety Administration, as applicable, for maintaining a clean, safe and healthy work environment.

Required Cleaning Protocols for All Businesses Maintaining In-Person Operations

For businesses authorized to maintain in-person operations under the Governor’s prior Executive Order 107, Executive Order 122 now requires that owners of buildings used for commercial, industrial or other enterprises, including but not limited to facilities for warehousing, manufacturing, commercial offices, airports, grocery stores, universities, colleges, government, hotels, and residential buildings with at least 50 units, must adopt policies that, at minimum, implement the following cleaning protocols in areas where operations are conducted:

• Clean and disinfect high-touch areas routinely in accordance with CDC guidelines, particularly in spaces that are accessible to staff, customers, tenants, or other individuals, and ensure cleaning procedures following a known or potential exposure in a facility are in compliance with CDC recommendations;
• Otherwise maintain cleaning procedures in all other areas of the facility; and
• Ensure that the facility has a sufficient number of workers to perform the above protocols effectively and in a manner that ensures the safety of occupants, visitors, and workers.

Non-Essential Construction Projects Must Cease

The Order further requires that the physical operations of all non-essential construction projects cease.  “Essential construction projects” are defined as:

• Projects necessary for the delivery of health care services, including but not limited to hospitals, other health care facilities, and pharmaceutical manufacturing facilities;
• Transportation projects, including roads, bridges, and mass transit facilities or physical infrastructure, including work done at airports or seaports;
• Utility projects, including those necessary for energy and electricity production and transmission, and any decommissioning of facilities used for electricity generation;
• Residential projects that are exclusively designated as affordable housing;
• Projects involving pre-K-12 schools, including but not limited to projects in Schools Development Authority districts, and projects involving higher education facilities;
• Projects already underway involving individual single-family homes, or an individual apartment unit where an individual already resides, with a construction crew of 5 or fewer individuals. This includes additions to single-family homes such as solar panels;
• Projects already underway involving a residential unit for which a tenant or buyer has already entered into a legally binding agreement to occupy the unit by a certain date, and construction is necessary to ensure the unit’s availability by that date;
• Projects involving facilities at which any one or more of the following takes place: the manufacture, distribution, storage, or servicing of goods or products that are sold by online retail businesses or essential retail businesses, as defined by Executive Order 107 and subsequent Administrative Orders;
• Projects involving data centers or facilities that are critical to a business’s ability to function;
• Projects necessary for the delivery of essential social services, including homeless shelters;
• Any project necessary to support law enforcement agencies or first responder units in their response to the COVID-19 emergency;
• Any project that is ordered or contracted for by Federal, State, county, or municipal government, or any project that must be completed to meet a deadline established by the Federal government;
• Any work on a non-essential construction project that is required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project; and
• Any emergency repairs necessary to ensure the health and safety of residents.

Penalties for Non-Compliance

Penalties for violations of this Executive Order may be imposed under, among other statutes, N.J.S.A. App. A:9-49 (violations as disorderly conduct) and -50 (aiding or abetting violation), under which penalties include imprisonment for a term not to exceed 6 months, a fine not to exceed $1,000.00, or both, in the discretion of the court.

The Order will take effect beginning at 8:00 p.m. on Friday, April 10, 2020, and will remain in effect until revoked or modified by the Governor.