New Jersey: “Stay at Home” Order, Anti-Discrimination Law Amendment and “No Hoarding” Legislation in Response to COVID-19

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

Seyfarth Synopsis:  As described in our prior alerts here and here, Governor Murphy and the State Director of Emergency Management have executed increasingly restrictive legislation, executive orders and administrative orders to ensure social distancing and slow the spread of COVID-19 in New Jersey.  The most recent measures include legislation prohibiting employers from terminating employees who have, or may have, COVID-19 and need to miss work, placing limits on the return of items purchased from retail food stores, and executive orders which direct nearly all residents to stay at home and conclusively state that the Governor’s directives supersede all orders issued by county or municipal officials.

“Stay at Home” Order: Executive Order 107

On March 21, 2020, Governor Murphy issued Executive Order 107, which he dubbed the “Stay at Home” Order and which supersedes the Governor’s prior Executive Order 104.  The Stay at Home Order incorporates the restrictions established in prior Executive and Administrative Orders, and further requires New Jersey residents to remain home or at their place of residence subject to limited exceptions, cancels all social gatherings, requires the closure of all non-essential retail businesses, and mandates that all businesses and non-profits utilize telework or work-from-home arrangements wherever practicable.  Specifically, the Order directs the following:

1.  All New Jersey residents to remain home or at their place of residence unless they are:

• Obtaining goods or services from essential retail businesses;
• Obtaining takeout food or beverages from restaurants, other dining establishments or food courts;
• Seeking medical attention, essential social services or assistance from law enforcement or emergency services;
• Visiting family or other individuals with whom the resident has a close personal relationship, such as those for whom the individual is a caretaker or romantic partner;
• Reporting to, or performing, their job;
• Walking, running, operating a wheelchair, or engaging in outdoor activities with immediate family members, caretakers, household members, or romantic partners while following best social distancing practices with other individuals, including staying six feet apart;
• Leaving the home for an educational, religious or political reason;
• Leaving the home because of a reasonable fear for his or her health or safety; or
• Leaving the home at the direction of law enforcement or other government agency.

2.  Gatherings of individuals, such as parties, celebrations or other social events (e.g., weddings, etc.), are cancelled.

3.  The brick-and-mortar premises of all non-essential retail businesses must close. Online and telephonic delivery services are permitted to the extent the retail business is authorized to operate an online or telephonic delivery service under existing law. 

The following essential retail businesses are excluded from this directive and may remain open during their normal business hours:

• Grocery stores, farmer’s markets and farms that sell directly to customers, and other food stores, including retailers that offer a varied assortment of foods comparable to what exists at a grocery store;
• Pharmacies and alternative treatment centers that dispense medicinal marijuana;
• Medical supply stores;
• Retail functions of gas stations;
• Convenience stores;
• Ancillary stores within healthcare facilities;
• Hardware and home improvement stores;
• Retail functions of banks and other financial institutions;
• Retail functions of laundromats and dry-cleaning services;
• Stores that principally sell supplies for children under five years old;
• Pet stores;
• Liquor stores;
• Car dealerships, but only to provide auto maintenance and repair services, and auto mechanics;
• Retail functions of printing and office supply shops; and
• Retail functions of mail and delivery stores.

Essential retail businesses must, wherever practicable, provide pickup services outside or adjacent to their stores for goods ordered in advance online or by phone.  Any essential retail business whose brick-and-mortar premises remain open to the public shall abide by social distancing practices to the extent practicable while providing essential services. These include all reasonable efforts to keep customers six feet apart and frequent use of sanitizing products on common surfaces.

4.  All restaurants, dining establishments and food courts, with or without a liquor license, and all bars and other holders of a liquor license with retail consumption privileges are permitted to operate their normal business hours, but are limited to offering only food delivery and/or take-out services.

5.  All recreational and entertainment businesses, including but not limited to those businesses listed below, must close to the public:

• Casino gaming floors, including retail sports wagering lounges, and casino concert and entertainment venues. Online and mobile sports and casino gaming services may continue to be offered.
• Racetracks, including stabling facilities and retail sports wagering lounges. Mobile sports wagering services may continue to be offered.
• Gyms and fitness centers and classes.
• Entertainment centers, including but not limited to, movie theaters, performing arts centers, other concert venues, and nightclubs.
• All indoor common area portions of retail shopping malls. Restaurants and other stores located within shopping malls that have their own external entrances open to the public, separate from the general mall entrance, may remain open pursuant to the terms and directives of the Order for operating hours and takeout or food delivery services. All entrances and exits to the indoor common area portions of retail shopping malls must remain closed.
• All places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions.
• Facilities where personal care services are performed that, by their very nature, result in noncompliance with social distancing guidelines, including but not limited to cosmetology shops; barber shops; beauty salons; hair braiding shops; nail salons; electrology facilities; spas, including day spas and medical spas, at which solely elective and cosmetic medical procedures are performed; massage parlors, tanning salons, tattoo parlors, and public and private social clubs, whether or not they serve alcohol, including but not limited to facilities owned or operated by the American Legion, Veterans of Foreign Wars, Knights of Columbus, and any other social clubs associated with community service organizations. This excludes any health facilities that provide medically necessary or therapeutic services.
• All municipal, county and State public libraries, and all libraries and computer labs at public and private colleges and universities.

6.  All businesses or non-profits in the State, whether closed or open to the public, must accommodate their workforce, wherever practicable, for telework (i.e., working from home or alternative locations closer to home through the use of technology that equips the individual to access necessary materials) or work-from-home arrangements. To the extent a business or non-profit has employees who cannot perform their functions via telework or work-from-home arrangements, the business or non-profit should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.  Examples of employees who need to be physically present at their work site in order to perform their duties include, but are not limited to:  law enforcement officers, fire fighters and other first responders; cashiers or store clerks; construction workers; utility workers; repair workers; warehouse workers; lab researchers; information technology maintenance workers; janitorial and custodial staff; and certain administrative staff.

7.  Public, private and parochial preschool program premises, and elementary and secondary schools, including charter and renaissance schools, are to remain closed.

8.  Institutions of higher education must continue to cease in-person instruction. Institutions may apply for a waiver, however, to allow in-person instruction where there is a “compelling rationale.”

9.  Schools may be permitted (following appropriate approval) to remain open on a limited basis for the provision of food or other essential, non-educational services, or for educational or child care services if needed in emergency situations.

The Order further specifies that it does not in any way limit, prohibit or restrict:  the provision of health care or medical services to members of the public; access to essential services for low-income residents, including but not limited to food banks; the operations of newspapers, television, radio, and other media services; the operations of law enforcement agencies; or the operations of the federal government or the movement of federal officials in New Jersey while acting in their official capacity.

During the press conference on March 21, 2020 announcing and discussing the Order, the Governor offered further clarification that certain in-home health providers and caretakers, physical therapy offices, and construction work (both commercial and residential), among other services, are considered essential services under the Order. 

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).

The Order will take effect on March 21, 2020 at 9:00 p.m. and will remain in effect until revoked or modified by the Governor.

Executive Order 108

Governor Murphy also issued Executive Order 108 on March 21, 2020, which states that any county or municipal restriction imposed in response to COVID-19 that in any way will or might conflict with any of the provisions of Executive Order 107, or which will or might in any way interfere with or impede its achievement, or the achievement of Administrative Orders issued as authorized by the Governor’s Executive Orders, is hereby invalidated.  And municipalities and counties may not enact or enforce any such conflicting rules.  The Governor stressed that the purpose of this Order is for the State to operate under one set of rules and speak with one voice, and to avoid a patchwork of legal obligations throughout the State.

The only categories of entities over which municipalities or counties have the ability to impose additional restrictions in response to COVID-19 are online marketplaces for arranging or offering lodging and municipal or county parks.

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).

This Order will also take effect on March 21, 2020 at 9:00 p.m. and will remain in effect until revoked or modified by the Governor.

COVID-19 Anti-Discrimination Law: Employers Prohibited From Terminating Employees Who Have, Or May Have, COVID-19 and Need to Miss Work

On March 20, 2020, Governor Murphy signed legislation (A3848/S2301), which prohibits an employer, during the ongoing COVID-19 Public Health Emergency and State of Emergency, from terminating or otherwise penalizing an employee who requests or takes time off from work based on the written or electronically transmitted recommendation of a medical professional licensed in New Jersey that the employee take that time off for a specified period of time because the employee has, or is likely to have, an infectious disease which may infect others at the employee’s workplace.  Following the employee’s specified period of leave, the employer also may not refuse to reinstate the employee to employment in the position held when the leave commenced, with no reduction in seniority, status, employment benefits, pay, or other terms and conditions of employment.

An employee affected by an employer’s violation of this act may file a written complaint with the Commissioner of Labor and Workforce Development or initiate a court action to seek reinstatement to employment.  A court or the commissioner may order reinstatement of the employee and fine the employer $2,500 for each violation.

In practice, this new legislation stands to create complications for employers who are considering temporary employee layoffs or furloughs in response to COVID-19-related closures of their businesses.  One would hope that if a layoff or furlough includes an employee that has or had COVID-19, the determinative factor in analyzing whether a violation occurred with regard to that employee is whether the employee’s separation was caused by business circumstances or whether it was occasioned by or related to the employee’s COVID-19 condition.

COVID-19 No Hoarding Law:  Retail Food Stores Prohibited From Accepting Returns of “Groceries and Other Foodstuffs”

On March 20, 2020, Governor Murphy also signed legislation (A3865/S2291), which prohibits retail food stores from accepting the return of any groceries or other foodstuffs purchased by a consumer during, and for 30 days following, a state of emergency declared in response to COVID-19.  The only exception is if the retail food store determines, in its sole discretion, that the groceries and other foodstuffs are unsafe for use or otherwise adulterated as a result of any manufacturing error or defect.  The act further states that any groceries or other foodstuffs accepted for return by a retail food store cannot be offered for resale.

Under the act, “groceries and other foodstuffs” means dairy products, meat and delicatessen products, produce products, seafood products, carbonated beverages, coffee and other beverages, snack foods, candy products, baked products, paper products, household cleaning items, health and beauty products, frozen foods, pet foods and supplies, and any other edible product not previously listed.  “Retail food store” is defined as any retail establishment where groceries and other foodstuffs are regularly and customarily sold in a bona fide manner for off-premises consumption.

This act is effective immediately.