[co-author: Melinda Lapan]
On November 5, 2020, under a new Executive Order, New Jersey employers will be required to implement a new set of employee health screening protocols for all employees. Employers who have already returned to work, but are not currently following these protocols, will have to quickly mobilize more rigorous safety and health screening procedures. All New Jersey employers are best served by reviewing their operating procedures for employees who work on site because this Executive Order has enforcement provisions that include closure of the worksite for non-compliant businesses.
Executive Order 192 - What is Required
Executive Order 192 mandates that all businesses, schools, non-profit organizations, and governmental entities in New Jersey adhere to the following requirements if they require or allow employees to work onsite. Employers must:
- Conduct daily health checks, such as temperature screenings, visual symptom checking, or health questionnaires consistent with the latest Centers for Disease Control (CDC) guidance, and observe confidentiality required under the Americans with Disabilities Act (ADA), the New Jersey Law Against Discrimination (NJLAD), the Equal Employment Opportunity Commission, and other relevant laws or agency directives.
- Maintain social distancing to the maximum extent including during activities that would typically involve several workers in a single space, such as meeting or break rooms, bathrooms, entrances, and exits.
- Require the use of masks in areas where employees cannot maintain a distance of six or more feet and install physical barriers between workstations wherever possible; employees can be permitted to remove masks if they maintain a social distance of six or more feet or if there are physical barriers.
- Require employees, customers, visitors, and vendors to wear a mask on entering and exiting the work site.
- Deny entry to anyone who refuses to wear a mask, and for employees who cannot wear a mask because of a disability, employers must engage in the interactive process and accommodate the employee consistent with federal and state law. Employers may require medical documentation relating to the issue of masks from employees, customers, and vendors because this Executive Order rescinds any prior order that imposed limitations on obtaining medical documentation.
- Provide sanitation supplies, provide employees opportunity for handwashing throughout the day, have adequate handwashing facilities, frequently disinfect all high-touch areas and common areas with Department of Health or CDC approved cleaning products and recommendations for disinfecting.
- Separate and send employees home who have symptoms or who become or appear sick during the day, and employers must follow the rules relating to the use of accrued paid sick leave, accrued PTO under the employer’s policies, or other laws (such as the FFCRA emergency sick leave).
- Notify all employees of any known exposure to COVID-19 at the worksite and be consistent with confidentiality obligations under the ADA, NJLAD, or other law or guidance.
- Clean and disinfect the worksite consistent with CDC when an employee at the worksite has been diagnosed with COVID-19.
- Continue to follow guidelines and directives of the CDC, New Jersey Department of Health, and OSHA to maintain a clean, safe, and healthy work environment.
The Executive Order states that the requirements will not apply to first responders, emergency management personnel, health care personnel, law enforcement or correction personnel, transit workers, military employees, and certain government employees where the application would interfere with the employees’ ability to discharge their duties.
The new requirements are backed by an enforcement mechanism. The Commissioner of New Jersey’s Labor and Workforce Development (LWD) has been authorized to establish a complaint procedure for employees to lodge a concern about workplace safety and the LWD will adopt a protocol for investigating and addressing any violations of the Executive Order. Employees may still pursue other avenues of redress for workplace safety issues and the new mechanism is not meant to be an exclusive way to resolve complaints. LWD is also charged with providing compliance and safety training for employers and employees. The Executive Order imposes a duty on every person or entity in this State or doing business in this State to cooperate fully with the Executive Order.
Employers who do not comply may be subject to fines, penalties, or closure by the Commissioner of the Department of Health.
As New Jersey and every other state continue to battle the pandemic, new regulations and guidance from the CDC, OSHA, and other federal or state governments or entities can be expected.