Yesterday (March 16, 2020) the Governor of New Jersey issued Executive Order No. 104 (the “Order”) and activated the National Guard under the Emergency Powers provided under the New Jersey Constitution in another effort to curtail the spread of COVID-19 (coronavirus). Violating the Order, or aiding and abetting another to do so, is a criminal disorderly person offense. Punishment for violating the Order includes imprisonment for up to six months and a $1,000 fine per violation.
The Order strictly prohibits:
1. Gatherings of more than 50 people in the State of New Jersey (with limited exceptions for normal operations of airports, bus and train stations, medical facilities, offices, factories, industrial or manufacturing operations, construction sites, mass transit, or the purchase of groceries or consumer goods).
2. All public, private, and parochial preschool program premises, and elementary and secondary schools, including charter and renaissance schools, shall be closed to students beginning on Wednesday, March 18, 2020, and shall remain closed as long as the Order remains in effect.
3. All institutions of higher education shall cease in-person instruction beginning on Wednesday, March 18, 2020, for as long as the Order remains in effect.
4. Non-essential businesses are ordered closed to members of the public, effective 8:00 p.m. today. These facilities are to remain closed to the public for as long as the Order remains in effect, unless an exemption is provided by the Superintendent of the State Police:
5. Other non-essential retail, recreational, and entertainment businesses must cease daily operations from 8:00 p.m. until 5:00 a.m. From 5:00 a.m. until 8:00 p.m., these businesses may remain open if they limit their occupancy to no more than 50 persons and adhere to social distancing guidelines. Essential businesses excluded from this directive include:
The Superintendent of State Police has discretion to amend and set operating hours.
6. All restaurants, dining establishments, and food courts, with or without a liquor license, all bars, and all other holders of a liquor license with retail consumption privileges, may operate their normal business hours, but are limited to offering only food delivery and/or take-out services. If alcoholic beverages are to be sold from a restaurant, dining establishment or bar with a liquor license, such sales shall be limited to original containers sold from the principal public barroom.
7. The Superintendent of State Police can place restrictions on travel on any road within New Jersey and local law enforcement and the Attorney General are directed to enforce these restrictions.
The New Jersey Department of Labor has issued guidance stating that New Jersey employees may use paid sick time under the New Jersey Earned Sick Leave Law if they are unable to work for various reasons related to COVID-19, including because of an order to close the workplace due to a public health emergency, even if the workplace remains open in defiance of that order. For information about the Earned Sick Leave Law, please see our May 3, 2018 Legal Alert. Additionally, employees who exhaust paid sick time and cannot report to work due to their need to care for a family member who has coronavirus or symptoms of COVID-19 may be eligible for New Jersey Family Leave and/or New Jersey Family Leave Insurance. Family Leave Insurance is a partial wage replacement (monetary benefit) similar to unemployment insurance for employees who cannot work due to their need to care for a family member with a serious health condition. Family Leave Insurance is not a leave entitlement, meaning it does not carry a right to job restoration. Family Leave and Family Leave Insurance may run concurrently, though an employee who is not eligible for Family Leave may be eligible for Family Leave Insurance.
Employer’s Bottom Line: The Order is a powerful message from the Governor that New Jersey seeks to get ahead of the spread of COVID-19, despite the obvious costs to the business community. The Order likely will not be the last step by the State to curb the pandemic, and employers with operations in New Jersey must be vigilant at the ever-changing legal landscape.
The FordHarrison Coronavirus Task Force continues to post content on our website and will continue to provide guidance as the situation develops.