[co-author: Grayson Moronta]
Seyfarth Synopsis: New Jersey enacted a new law on June 4, 2021 that will lift (effective on July 4) most executive orders signed by Governor Murphy in response to the COVID-19 pandemic. While the law has been advanced as curtailing executive powers, the reality seems somewhat less clear and has prompted some political wrangling. Under the law, some orders (including a number especially relevant to employers) will remain in effect until the end of the year, including: (1) Executive Order 150, which permits expanded outdoor food and beverage operations; (2) Executive Order 237, which permits summer youth overnight and day camps with new health regulations for the 2021 season; and (3) the Governor’s “most recent executive order containing general . . . [COVID-19] mitigation measures,” seemingly referring to Executive Order 242, which was clarified by Executive Order 243, that lifted masking and social distancing requirements depending on the location or type of activity and an individual’s vaccination status. Immediately after signing the legislation, Governor Murphy also signed Executive Order 244 ending the COVID-19 Public Health Emergency, but specifying that the State of Emergency remains in New Jersey.
Newly Enacted Legislation & Executive Order
On June 4, 2021, Governor Murphy issued Executive Order 244 terminating the Public Health Emergency declared in Executive Order 103, while at the same time extending Executive Order 103’s State of Emergency. This action immediately followed the Governor’s signing of legislation (A5820/S3866) that will lift most executive orders issued by the Governor pursuant to the COVID-19 public health emergency, effective July 4. These actions of June 4 seemingly mark the beginning of the end to 15 months of pandemic, executive lawmaking-on-the-fly, while at the same time creating some ambiguities of their own as to how and when pandemic regulations will phase out. In this regard, the new law highlights that fourteen of the hundreds of executive orders enacted by Governor Murphy will remain in effect until January 1, 2022, unless earlier terminated or modified. Included in those Executive Orders that will remain are the following that seem especially relevant to employers:
- Executive Order 150 (2020): Permits food and beverage establishments to offer in-person service at outdoor areas, provided that the establishment complies with certain requirements as listed in the Order. Also permits municipalities to allow food and beverage establishments to expand their footprint to outdoor areas, including sidewalks, streets, or parks.
One point of potential confusion is that Executive Order 150 includes requirements that were effectively rescinded by later orders, yet those later orders will expire before Executive Order 150. For example, Executive Order 150 includes requirements that food and beverage establishments limit capacity to a number that ensures all patrons can remain six feet apart, ensure that tables and seats are placed six feet apart in all directions, not allow patrons to enter indoor premises, and require patrons to wear face coverings; but all of those requirements were effectively lifted by Executive Orders 241 and 242. Given that the new law is meant to lift requirements, rather than reinstate prior restrictions, it seems the continuation of Executive Order 150 is meant to be limited solely to extending permission for food and beverage establishments to offer in-person service at outdoor areas and potentially expand their service footprint to offer in-person service at outdoor areas, subject to the requirements that were not otherwise rescinded (e.g., prohibiting smoking in outdoor areas designated for the consumption of food and/or beverages) and municipalities continuing to permit the expansion of establishments’ service footprint to outdoor areas.
- Executive Order 237 (2021): Permits summer youth overnight and day camps for the 2021 season, while establishing stricter health and operational standards and requirements. There are cross-references to certain expired and other orders in Executive Order 237 that will need to be examined by the legislature to ensure that the purposes of extending Executive Order 237 are met.
- Executive Order 242, as clarified by Executive Order 243 (2021): Lifts face covering and social distancing requirements depending on the location or type of activity and an individual’s vaccination status, as we reported here.
Confusingly, under the law, the order to remain in effect is described as “[t]he most recent executive order containing general . . . [COVID-19] mitigation measures regarding face coverings, social distancing, and gatherings prior to the effective date of this act.” The Governor’s most recent order at the law’s issuance was Executive Order 243. However, the Governor’s announcement of his signing of the legislation lists Executive Order 242 as remaining in effect, does not reference Executive Order 243, and omits the “most recent executive order” language that appears in the actual law. The listing of Executive Order 242 without reference to Executive Order 243 is puzzling given that the later order “clarified” the requirements of the former and in effect reversed the mandate that non-public workplaces require vaccinated workers to wear face masks and social distance. Again, because the new law is meant to lift requirements, rather than reinstate prior restrictions, and the law states that “the executive order cannot be more restrictive than the recommendations provided in the . . . [CDC] guidelines on social distancing and face coverings,” we understand the continuation of “the most recent executive order” to mean that Executive Order 242, as clarified by Executive Order 243, remains in effect.
Notably, the law also conditions the current adherence to CDC social distancing and mask guidelines on there being no substantial increase in hospitalizations or spot positivity, or a rate or transmission above 1, which would “necessitate a modification that would be more restrictive.”
The other executive orders that will now remain in effect until January 1, 2022 and which may be modified by the Governor or legislature include: Executive Order 106 (2020) (enacting moratorium on removals of individuals due to evictions or foreclosures); Executive Order 111 (2020) (directing health care facilities to report data, including PPE inventory and bed capacity, on a daily basis); Executive Order 112 (2020) (removing barriers to health care professionals joining New Jersey's COVID-19 response and providing protections for front line health care responders, and immunity for certain healthcare providers); Executive Order 123 (2020) (extending insurance premium grace periods); Executive Order 127 (2020) (extending certain deadlines associated with rulemaking); Executive Order 159 (2020) (extending certain statutory deadlines across state government); Executive Order 170 (2020) (extending certain statutory deadlines across state government); Executive Order 178 (2020) (extending certain statutory deadlines across state government); Executive Order 207 (2020) (enrolling residents who choose to receive a COVID-19 vaccine in the New Jersey immunization information system); Executive Order 229 (2021) (extending the residential utility shutoff moratorium); and Executive Order 233 (2021) (providing all stimulus payments issued to New Jerseyans under the American Rescue Plan Act to be exempt from, and not subject, garnishment by private creditors and debt collectors).
The law further states that any administrative order, directive, or waiver that relied on the existence of the public health emergency will expire on January 11, 2022, with some exceptions. In addition, the law authorizes the Governor to seek a 90-day extension of any such administrative order, directive, or waiver, which can be granted by a concurrent resolution passed by the Legislature.
As we recently noted here, the paused 2020 amendments to New Jersey’s WARN Act become effective 90 days after the termination of Executive Order 103. Since Executive Order 103 now seems destined to terminate fully on July 4, the effective date of the NJ WARN amendments correspondingly appears targeted for October 2, 2021.
Finally, the law states that even after the Public Health Emergency ends, the Governor, Commissioner of Health, and head of any other state agency retain the authority to issue orders, directives, and waivers related to: (1) vaccination distribution, administration, and management; (2) COVID-19 testing; (3) health resource and personnel allocation; (4) data collection, retention, sharing, and access; (5) coordination of local health departments; and (6) implementation of any applicable recommendations of the CDC to prevent or limit the transmission of COVID-19, including in specific settings. Presumably, this last area could include CDC recommendations that apply in employment settings. This authority will last until January 11, 2022, but contemplates a potential 90-day extension if sought by the Governor and approved by the Legislature.
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While businesses will certainly welcome the continued removal of COVID-19 restrictions, these new actions coming out of New Jersey seemingly will require further clarification to ensure their full understanding and effectiveness. As always, Seyfarth attorneys are available to assist New Jersey employers and businesses in navigating their specific COVID-19 regulations and requirements.