On April 8th, New Jersey continued issuing executive orders to address the COVID-19 pandemic. Since New Jersey declared both a Public Health Emergency and a State of Emergency on March 9th, it has issued a series of executive orders affecting all facets of life in New Jersey, some of which impose significant restrictions on what businesses can continue to operate and how. Executive Order 122, expands on the restrictions for businesses set forth in Executive Order 107. It mandates businesses that are permitted to continue operations must adopt specific protections for workers and customers, including in some instances providing face coverings and gloves to workers.

The Executive Order goes into effect Friday, April 10, 2020 at 8:00 pm.

The Executive Order, which can be found here, mandates businesses follow new guidance from the Center for Disease Control and Prevention (CDC) issued on April 3, 2020, which includes the recommendation that a face cloth covering be worn in public settings where social distancing is difficult to maintain. The notable restrictions include requiring retail customers to wear face cloth coverings in the store and requiring employers to provide face cloths and gloves to their employees to wear while working. As the CDC Guidance points out, face cloth coverings are not surgical or N95 masks, which should be reserved for health care workers. Instead, the CDC recommends these face cloth coverings can be made from simple materials, as provided in their instructional video.

The Executive Order addresses new procedures that must be implemented by essential retail businesses permitted to maintain in-person operations, stops all non-essential construction projects, provides policies that must be implemented by essential retail businesses, manufacturing businesses, warehousing businesses and businesses engaged in essential construction projects, and provides policies that must be adopted by businesses that are authorized to maintain in-person operations.

Violations of the order can result in disorderly conduct penalties under N.J.S.A. App. A, Sections 9-49, and 9-50, for violating an order of the governor, which include fines not to exceed $1,000 and imprisonment not to exceed 6 months. After Executive Order 107 was entered, due to the number of reports regarding potential violations, the State of New Jersey created an online form to report an employer, organization, or entity that may be violating any part of Executive Order 107 and now Executive Order 122.

Retail: The essential retail businesses covered by Executive Order 122 are those that were permitted to continue operating under Executive Order 107. That order permitted essential retail businesses such as grocery stores, pharmacies, convenience stores, liquor stores, and other covered businesses to remain open. All of the businesses permitted to remain open are now subject to Executive Order 122 and the accompanying precautionary safety measures that must be implemented. The required policies these businesses must adopt are:

• Limit occupancy at 50 percent 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;
• 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;
• 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.
  • Businesses must provide, at their expense, such face coverings and gloves for their employees.
  • 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 if 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.
  • Nothing in the stated policy should 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.
  • Where an individual declines to wear a face covering on store premises due to a medical condition that inhibits such usage, neither the essential retail business nor its staff shall require the individual to produce medical documentation verifying the stated condition.

Manufacturing and Warehousing: 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.
  • Businesses must provide, at their expense, such face coverings and gloves for their employees. 
  • 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 businesses must decline entry to the individual. 
  • Nothing in the stated 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. 
  • 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.
• 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.

Construction Projects: The order mandates that physical operations of all non-essential construction projects cease by Friday at 8:00 pm. Essential construction projects (as defined in the order) are permitted to continue. The specific policies that must be adopted by essential construction projects are the same as those that apply to manufacturing and warehouses businesses, discussed above.

All Essential Businesses: In addition to all of the above requirements, all essential retail businesses, warehousing businesses, manufacturing businesses, and essential construction projects must also adopt policies that, at a minimum, include the requirement to:

• 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; and
• 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;
• 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.

Building owners whose buildings are authorized to maintain in-person operations that have at least 50 units shall also adopt and implement the following policies 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.

As the order requires businesses to adopt policies to comply with its terms, it is recommended that covered employers adopt these policies by putting them in writing, communicating the policies to staff, and posting them in conspicuous places in the workplace. Retail businesses should also post signage mandating six feet of social distancing at the entrance, check-out lanes, and throughout other areas of the store where applicable.

Although the order is exhaustive in the specifics of what is required, there are some notable gaps that will need to be addressed. By way of example, who has the obligation to clean and launder the cloth face coverings, or whether there are exceptions to the procedures in light of a severe shortage of certain types of items, such as gloves and hand sanitizer. As legal issues regarding COVID-19 continue to evolve, it is essential that employers stay up to date on any new requirements. We will continue to monitor new developments, as well as additional guidance on existing executive orders.