New Jersey Lessens COVID-19 Restrictions on Non-Essential Construction Projects and Retail Businesses

Seyfarth Synopsis: Governor Murphy has signed multiple Executive Orders which will lessen the COVID-19 restrictions on non-essential construction projects and non-essential retail businesses, permit “car gatherings,” allow the opening of public and private beaches, boardwalks, lakes, and lakeshores, allow elective surgeries and invasive procedures to resume, and reopen charter fishing and watercraft rental businesses, with restrictions.

As we previously reported here  and here, Governor Murphy issued a series of Executive Orders in response to COVID-19, which directed New Jersey residents to stay at home, ordered the closure of the brick-and-mortar premises of all non-essential retail businesses, and halted most non-essential construction.  Citing a decrease in the rate of reported new cases of COVID-19 in New Jersey, the Governor has now taken measures, through Executive Orders 142, 143, 145, and 146, that will: (1) lessen the restrictions on non-essential construction projects and non-essential retail businesses, as well as allow residents to hold gatherings where attendees arrive and remain in separate vehicles (Executive Order 142); (2) allow residents to visit public and private beaches, boardwalks, lakes, and lakeshores in the State (Executive Order 143); (3) allow elective surgeries and invasive procedures to resume (Executive Order 145); and (4) reopen charter fishing and watercraft rental businesses (Executive Order 146).  Each of the Orders contain specific restrictions on reopening due to the ongoing risk of community spread of COVID-19.

Non-Essential Construction

Executive Order 142 removes the distinction between “essential” and “non-essential” construction projects from Executive Order 122.  Non-essential construction projects are permitted to resume, and all businesses engaged in construction projects in the State are now required to adopt policies that include, at minimum, the following requirements:

1. Prohibit non-essential visitors from entering the worksite;
2. Engage in appropriate social distancing measures when picking up or delivering equipment or materials;
3. Limit worksite meetings, inductions, and workgroups to groups of fewer than 10 individuals;
4. Require individuals to maintain six feet or more distance between them wherever possible;
5. Stagger work start and stop times where practicable to limit the number of individuals entering and leaving the worksite concurrently;
6. Identify congested and “high-risk areas,” including but not limited to lunchrooms, breakrooms, portable rest rooms, and elevators, and limit the number of individuals at those sites concurrently where practicable;
7. 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;
8. 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.
   
   — 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 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) nothing in the policy should 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; and (4) where an individual declines to wear a face covering on the premises due to a medical condition that inhibits such usage, neither the business nor its staff shall require the individual to produce medical documentation verifying the stated condition.
9. Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
10. Limit sharing of tools, equipment, and machinery;
11. Where running water is not available, provide portable washing stations with soap and/or alcohol-based hand sanitizers that have greater than 60% ethanol or 70% isopropanol;
12. Require frequent sanitization of high-touch areas like restrooms, breakrooms, equipment, and machinery;
13. When the worksite is an occupied residence, require workers to sanitize work areas and keep a distance of at least six feet from the occupants; and
14. Place conspicuous signage at entrances and throughout the worksite detailing the above mandates.

These requirements supersede the policy requirements from Paragraph 3 of Executive Order 122 for essential construction projects, although manufacturing businesses and warehousing businesses must still adopt policies that include the requirements of the prior Order.

This portion of the Order went into effect at 6:00 a.m. on Monday, May 18, 2020.

Curbside Pickup at Non-Essential Retail Businesses

Under Executive Order 142, non-essential retail businesses are permitted to reopen to the public, but only where they adopt policies that include, at minimum, the following requirements:

1. Customers may not enter the brick-and-mortar premises, but may pick up goods outside of the establishment that they have already ordered (“curbside pickup”);
2. In-store operations shall be limited, wherever feasible, to those employees who are responsible for the operations required for curbside pickup;
3. Customer transactions shall be handled in advance by phone, email, facsimile, or other means that avoid person-to-person contact, wherever feasible;
4. Customers shall notify the retailer by text message, email, or phone once they arrive, whenever feasible, or make best efforts to schedule their arrival time in advance. The customer shall be asked to remain in their vehicle, if arriving by car, until store staff delivers the purchase;
5. Designated employees shall bring goods outside of the retail establishment and place the goods directly in a customer’s vehicle whenever feasible; and
6. Retail businesses operating in shopping malls are permitted to operate by curbside pickup, in accordance with the above requirements, but employees must bring the goods to customers at the exterior of the mall and shall place them directly in a customer’s vehicle whenever feasible. The indoor portions of shopping malls shall remain closed to the public, consistent with Executive Order 107.

In addition, the adopted policies must ensure that the business does the following, at a minimum:

1. Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
2. Provide employees break time for repeated handwashing throughout the workday;
3. Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to staff;
4. Require frequent sanitization of high-touch areas to which workers have access; and
5. Require workers to wear cloth face coverings and gloves when interacting with other workers or customers and require workers to wear gloves when in contact with customers or goods. Businesses must provide, at their expense, such face coverings and gloves for their employees.  Nothing in the stated policy should prevent workers 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

This portion of the Order went into effect at 6:00 a.m. on Monday, May 18, 2020.

Car Gatherings Permitted

Executive Order 142 also allows “car gatherings” as an exception to Executive Order 107’s prohibition on gatherings of individuals, such as parties, celebrations or other social events.  The Order includes specific rules that attendees at such gatherings must follow.  For example, attendees must arrive in a vehicle and remain in that same vehicle during the entire gathering.  Also, each attendee’s vehicle must remain entirely closed at all times or the vehicles must be more than six feet apart.

This portion of the Order was effective immediately.

Certain Public and Private Outdoor Spaces Will Reopen

Under Executive Order 143, as of 6:00 a.m. on Friday, May 22, 2020, all public and private beaches, boardwalks, lakes, and lakeshores in the State will be open to the public.  However, these spaces must be used and maintained consistent with the restrictions and recommendations in the Order.  This follows suit on Executive Order 133, which in early May removed and modified the ban on utilizing parks and golf courses.

Elective Surgeries and Invasive Procedures May Resume

Under Executive Order 145, as of 5:00 a.m. on Tuesday, May 26, 2020, the suspension on elective surgeries and invasive procedures instituted in Executive Order 109 is rescinded.  By Monday May 18, 2020, the Department of Health and Division of Consumer Affairs are to issue directives, rules and/or administrative orders to address relevant considerations listed in the Order, including which types of facilities or categories of licensed health care providers can resume these procedures and whether such facilities or providers will be required to prioritize certain procedures, among other considerations.

Charter Fishing Services and Watercraft Rental Businesses May Reopen

Under Executive Order 146, charter fishing services and for-hire vessels, including charter and head boat activities, may reopen to the public so long as such businesses adopt policies that include minimum requirements specified in the Order.  In addition, while the brick-and-mortar premises of watercraft rental businesses must remain closed, such businesses are permitted to reopen to the public consistent with Executive Order 142’s requirements for non-essential retail businesses (i.e., they can open for “curbside pickup”).

This Order went into effect at 6:00 a.m. on Sunday, May 17, 2020.

Penalties for Non-Compliance

Penalties for violations of Executive Orders 142, 143, 145, or 146 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.

Further Expansion of Permitted Outdoor Activities

On May 18, 2020, Governor Murphy announced that he will be signing yet another Executive Order allowing the further expansion of permitted outdoor activities including private tennis clubs, expanded public and private golf, public golf driving ranges (private practice facilities were already permitted), shooting ranges, batting cages, horse riding, beaches and similar outdoor items with reduced risk of COVID-19 transmission.

Seyfarth continues to monitor Governor Murphy’s Orders in response to COVID-19 and will provide further updates as available.  New Jersey businesses should also closely track these updates, as new orders are being issued daily.