As the United States experiences a resurgence of COVID-19 cases with significantly higher daily case counts and hospitalizations on the rise, many states and municipalities have returned to stricter operating requirements in an attempt to combat the spread.
Secretary of Health Dr. Rachel Levine issued several orders earlier this week that strengthen restrictions affecting businesses, employees, customers, and travelers.
The travel mitigation Order sets forth requirements for those traveling into and returning to the Commonwealth from any other state, Commonwealth, or international location.
Individuals must produce evidence of a negative COVID-19 test collected within 72 hours prior to entering the Commonwealth, or quarantine for 14 days upon entering unless they qualify for an exemption. Exemptions are available for those travelling to and from the Commonwealth for work (i.e., commuting), for medical reasons, on directive of a state or federal military authority, and through the Commonwealth on their way to another destination.
These restrictions will pose significant challenges for businesses with employees who cannot perform work remotely, particularly as we expect to see employees travelling out of state over the holidays. Notably, the guidance does not mandate how employers must implement the testing or quarantine requirement.
The Masking Order strengthens masking requirements substantially indoors, outdoors, and in the workplace:
- Indoors: Individuals must wear face coverings where another person (not of the same household) is present, regardless of physical distancing, subject to certain exceptions, including when “working alone.” The requirement extends to one’s home when non-household members are present.
- Working alone: Working alone (indoors) means isolated from interaction with others with little or no expectation of in-person interaction, e.g., a lone worker in an enclosed office with a door, or a lone worker in a cubicle with three walls high enough to block the breathing zone of all people walking by and no one else is entering the cubicle.
- Outdoors: Face coverings are required when someone is with others (not of the same household) and unable to maintain “sustained physical distance.” This means staying at least six feet away from others to avoid “close contact” under the CDC’s definition (i.e., within six feet of an infected person for a cumulative total of 15 minutes over 24 hours). In some cases, less time may constitute close contact, taking into account factors such as proximity, symptoms, ventilation, and crowds.
- Exceptions: The Order continues to recognize exceptions for disabilities, unsafe conditions, verification of identity, and temporary removal for certain procedures (e.g., dentist).
- Face Shields and Alternative Mitigation: While cloth coverings are preferred, if they are not possible, plastic face shields are an acceptable alternative. The face shield alternative must be considered and deemed not possible before an individual may be exempted entirely from the face covering requirement. This rule will impact the employers’ interactive discussions with qualified individuals with disabilities under the ADA. The FAQs also state that, if an employee is unable to wear a face covering, the employer should employ additional mitigation measures, such as Plexiglas shields or additional physical distancing.
The Order requires businesses to take “reasonable steps” to enforce these requirements. The steps may include implementing a policy, training staff on conflict management, and monitoring and taking corrective actions for non-compliance by staff, customers, and visitors. The nature of reasonable steps depends on various factors, including the size of the business, levels of supervision, numbers of staff, and workplace culture.
On November 16, 2020, Philadelphia Mayor Jim Kenney and City Health Commissioner Thomas Farley issued a new “Safer at Home” Order significantly restricting business activities in the City. The Order takes effect at 5 p.m. on November 20, 2020, and remains effective through January 1, 2021.
Among other restrictions, the Order requires the closure of gyms, theaters, concert venues, museums, movie theaters, bowling alleys, private clubs, event centers, and locations rented for celebratory events (including weddings and other social activities). It suspends indoor dining service, limits outdoor dining to four people per table, and permits the continuation of takeout and delivery service. The Order limits capacity for retail to no more than five people per 1,000 square feet. And, generally, except for elementary, middle school and early education programs, all schooling must transition to a virtual setting.
The Order places additional restrictions on office-based work as well. Office-based work that does not involve direct provision of services (such as medical services) must continue remotely. Only business operations “not conducive to operating remotely” may be conducted onsite. If employees must be present at the worksite, no more than five people per 1,000 square feet may be present at any one time. Strict compliance with masking and social distancing requirements must be enforced. The City’s revised Guidance for Office Workers sets out further precautions employers should take.
The Order also adds to the City’s previous Mask Order, requiring individuals to wear a mask or other face covering at all times when they are in the same room with or in the company of a person outside their household – whether indoors or outdoors and without regard to the distance maintained.
Significantly, the Order places liability on the owner, operator, or host of any workplace or event location for compliance with masking requirements, density limitations, and social distancing requirements. Facilities must also prominently post signage advising of health and safety requirements. The Order states that non-compliance may result in fines up to $2,000 per violation for a business and $500 per violation for individuals.
In conjunction with the new restrictions, the City promulgated industry specific guidance for businesses that may continue operating.
Governor Murphy’s new Executive Order No. 196 limits indoor gatherings to 10 people. Indoor gatherings that involve religious services or celebrations, political activities, wedding ceremonies, or memorial services are exempted. For these gatherings, the Order limits the number of people to 25 percent of the capacity of the room in which it takes place. The Order places the same limit on professional and collegiate athletic competitions held indoors, though “necessary individuals,” like athletes, coaches and referees, are not included when calculating the capacity limit.
The Order also mandates social distancing in outdoor gatherings and limits these gatherings to 150 persons or fewer. Outdoor entertainment centers where performances are viewed or given, including movie theaters and concert venues, must continue to ensure that patrons remain six feet apart and limit attendance to 150 people. Professional and collegiate athletic competitions held outdoors are subject to the same 150-person limit.
Governor Murphy expects that all businesses in NJ cooperate fully in all matters concerning the Order.
The indoor gathering limits take effect on November 17, 2020. And the outdoor gathering limits take effect on November 23, 2020.
The attorneys in Ballard Spahr’s Labor and Employment Group are monitoring closely the executive and public health orders being issued around the country and can assist employers in taking compliance measures. To view orders adopted in other states around the nation, please visit our state legislative tracker in the Ballard Spahr COVID-19 Resource Center.