Governor of New Jersey Issues Stay At Home Order Closing All Non-Essential Retail Businesses

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To address the continuing COVID-19 crisis, on Saturday, March 21, 2020, New Jersey Governor Phil Murphy issued Executive Order No. 107 (“EO-107” or the “Order”), which effectively requires all New Jersey residents to stay at home, bars non-essential travel, and closes the brick-and-mortar premises of all non-essential retail businesses. At the same time, Governor Murphy issued Executive Order No. 108 (“EO-108”), which clarifies that if the statewide EO-107 and related Executive Orders conflict with municipal or county regulations, the Governor’s edicts control.

Essentially, EO-107 provides that, unless the retail business provides essential goods and services such as food, medical services, or financial/banking services, it must close. If a business is permitted to operate, the Order further mandates that the business must, to the extent possible, institute work-from-home procedures and telework. However, as discussed in further detail below, non-retail businesses such as construction, manufacturing, and shipping are not subject to the closure mandate and many may continue operations subject to certain limitations.

EO-107 became effective at 9:00 p.m. on Saturday, March 21, 2020 and shall remain in effect until until revoked or modified by the Governor.

The key components of EO-107 are outlined below:

Non-Essential Brick and Mortar Retail Business Must Close

EO-107 provides that “[t]he brick-and-mortar premises of all non-essential retail businesses must close to the public as long as” EO-107 remains in effect. (EO-107 at ¶ 6).

The categories of essential businesses that are not subject to closure are explicitly listed in EO-107. Under the Order, “essential retail business” includes:

a. 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;

b. Pharmacies and alternative treatment centers that dispense medicinal marijuana;

c. Medical supply stores;

d. Retail functions of gas stations;

e. Convenience stores;

f. Ancillary stores within healthcare facilities;

g. Hardware and home improvement stores;

h. Retail functions of banks and other financial institutions;

i. Retail functions of laundromats and dry-cleaning services;

j. Stores that principally sell supplies for children under five years old;

k. Pet stores;

l. Liquor stores;

m. Car dealerships, but only to provide auto maintenance and repair services, and auto mechanics;

n. Retail functions of printing and office supply shops; and

o. Retail functions of mail and delivery stores.

(EO-107 at ¶ 6).

However, although they may continue to operate, essential retail businesses are subject to restrictions. Specifically they “must, wherever practicable, provide pickup services outside or adjacent to their stores for goods ordered in advance.” Id. Furthermore, to the extent an essential retail business’s brick-and-mortar premises remains open to the public, it must institute social distancing practices to the extent practicable while providing essential services. This includes “all reasonable efforts to keep customers six feet apart and frequent use of sanitizing products on common surfaces.” (EO-107 at ¶ 7).

Recreational and Entertainment Business Must Close

All casinos, racetracks, gyms/fitness centers, movie theatres, concert venues, nightclubs, personal care businesses (barber shops, hair and nail salons, etc.), libraries, computer labs on college campuses and other similar business must close. (EO-107 at ¶ 9). Indoor sections of shopping malls must close, but restaurants and other essential business therein may remain open, but only if they have their own separate entrance outside of the common areas of the mall. (EO-107 at ¶ 9).

Restaurants are Limited to Food Delivery and/or Take-Out Services

While the Order permits restaurants, cafeterias, dining establishments and food courts to continue operations during their normal business hours, they are limited to offering only food delivery and/or take-out services. (EO-107 at ¶ 8). If the facility has a liquor license, the liquor must be sold in its original container. The on-premises consumption of alcohol is prohibited. Id.

Healthcare And Other Businesses Are Permitted to Remain Open Though Telework and Social Distancing Are Encouraged

EO-107 also specifically identifies other types of businesses that may remain open including:

a. Healthcare and medical service providers. (EO-107 at ¶ 17).

b. Essential services to low-income residents, including food banks. (EO-107 at ¶ 18).

c. Newspapers, television, radio, and other media services. (EO-107 at ¶ 19).

Although not explicitly provided for in EO-107, the official Guidance provided by the State of New Jersey provides that certain businesses may continue to operate, subject to certain limitations discussed below. The Guidance states:

Manufacturing, industrial, logistics, ports, heavy construction, shipping, food production, food delivery, and other commercial operations may continue operating, but . . . they should limit staff on site to the minimal number to ensure that essential operations can continue.

During his March 21, 2020 press conference, at which he announced EO-107, Governor Murphy explicitly stated, “work at construction sites may continue as can manufacturing, trucking and transportation operations.” In response to a question, the Governor reiterated, “Construction has been deemed as essential. Construction will continue.”

Notably, however, the Governor made clear during his press conference announcing EO-107 that the closure order is otherwise far-reaching, “And all businesses, not just retail but literally all businesses, must move their employees to work from home wherever possible.”

In this regard, the Order mandates that “[a]ll businesses or non-profits in the State, whether closed or open to the public, must accommodate their workforce wherever practicable, for telework or work-from-home arrangements.” (EO-107 at ¶ 10).

To the extent employees cannot work remotely, businesses “should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.” (EO-107 at ¶ 11). The Order provides examples of workers who need to be physically present at the work site to perform their duties to include: “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.” Id.

The Guidance notes that employees reporting to work are permitted to travel to and from their place of business and encourages employers to provide each employee a letter indicating that the employee works in an industry permitted to continue operations.

Application For Exemption

According to Paragraph 6 of EO-107, if a business believes that its retail business or operations are unique and should be included as “essential,” the business may submit a request to the State Director of Emergency Management, who is the Superintendent of State Police. The Director has the discretion to make additions, amendments, clarifications, exceptions, and exclusions to these lists.

Social Distancing Is Now Required

Not surprisingly, social distancing – including a requirement to “stay six feet apart” from other persons – is now required “when in public.” (EO-107 at ¶ 3). Moreover, if a New Jersey resident must travel, the individual may use public transportation “only if they have no other feasible choice.” (EO-107 at ¶ 4). Such social distancing is specifically required if public transportation is used. (EO at ¶ 4). Not surprisingly, “[g]atherings of individuals, such as parties, celebrations, or other social events, are cancelled, unless otherwise authorized by any part of” EO-107. (EO-107 at ¶ 5).

Consequences of Violations

Paragraph 25 of EO-107 provides “[p]enalties for violations of this Executive Order may be imposed under, among other statutes, N.J.S.A. App. A:9-49 and - 50.” N.J.S.A. App. A:9-49 defines violations as disorderly persons offenses “subject to imprisonment for a term not to exceed 6 months[,] … a fine not to exceed $1,000.00[,] or to both a fine and imprisonment, in the discretion of the court.” N.J.S.A. App. A:9-50 provides that those that aid and abet such violations are also disorderly persons subject to the same penalties.

Chiesa Shahinian & Giantomasi PC will continue to monitor these Orders and provide updates.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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