In an effort to combat the recent rise in COVID-19 cases in New Jersey, on October 28, 2020 Governor Murphy signed Executive Order 192 (the “Order”), mandating health and safety standards to protect New Jersey’s workers during the pandemic.  Effective November 5, 2020, the Order requires every business, non-profit and governmental or educational entity to implement certain protocols to protect employees, customers, and all others who come into physical contact with its operations. Key takeaways are summarized below.

Protocol Requirements
  • Individuals at the worksite must maintain at least six feet of distance from one another to the maximum extent possible. If six feet of distance is not feasible, employers must ensure that each employee wears a mask and physical barriers are installed between workstations wherever possible.
  • Individuals entering the worksite must wear cloth or disposable face masks while on the premises, except where the individual is under two years of age or where it is impracticable for an individual to wear a face mask (e.g., eating, drinking, or where the service provided cannot be performed by an individual wearing a mask).
  • Masking requirements specific to employees
    • Employers may permit employees to remove face masks when the employees are situated at their workstations and are more than six feet from other individuals at the workplace, or when an individual is alone in the office.
    • Employers must make face masks available to employees (at the expense of the employer).
    • Employers may deny entry to the worksite to any employee who declines to wear a face mask, except when doing so would violate state or federal law. Employers are expressly permitted to require employees to produce medical documentation supporting claims that they are unable to wear a face mask because of a disability.  Consistent with the Americans with Disabilities Act (“ADA”) and/or New Jersey Law Against Discrimination (“NJLAD”), employers may be required to engage in the interactive process to determine if a reasonable accommodation can be provided to the employee.
  • Masking requirements specific to customers and visitors
    • Employers may deny entry to the worksite to any customer or visitor who declines to wear a face mask, except when doing so would violate state or federal law. The employer may be required to provide a customer or visitor who declines to wear a mask due to a disability a reasonable accommodation pursuant to the ADA and/or NJLAD, unless doing so would pose an undue hardship on the employer’s operations.
    • Where a customer or visitor declines to wear a face mask on the premises due to a disability, neither the employer nor its employees can require the individual to produce medical documentation verifying the stated condition, unless otherwise required by state or federal law.
  • Provide sanitization materials to employees, customers, and visitors at no cost to those individuals.
  • Ensure employees practice regular hand hygiene, particularly when employees are interacting with the public, and provide employees break time for repeated handwashing throughout the workday and access to adequate hand washing facilities.
  • Regularly clean and disinfect all high-touch areas.
  • Prior to each shift, conduct daily health checks of employees in accordance with Centers for Disease Control and Prevention (CDC) guidance, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires.
  • Immediately separate and send home employees who appear to have symptoms, as defined by the CDC.Promptly notify all employees of any known exposure to COVID-19 in the workplace, consistent with the confidentiality requirements of the ADA and Equal Employment Opportunity Commission (EEOC).
  • Clean and disinfect the worksite in accordance with CDC guidelines when an employee at the worksite has been diagnosed with COVID-19.
  • Continue to follow cleaning and safety guidelines and directives issued by the New Jersey Department of Health (DOH), the CDC and the Occupational Safety and Health Administration (OSHA).

The Department of Labor and Workforce Department (NJDOL) will support the DOH’s efforts to address worker complaints from their employers.  The NJDOL’s roles will include establishing an intake mechanism to receive complaints from individuals working in New Jersey that are subject to the specific health and safety protocols outlined in this Order, creating a process for consideration of complaints, and coordinating with the DOH to establish a process to address the complaints.

Training Requirements

The Commissioner of the NJDOL is directed to provide compliance and safety training to inform workers of their rights and businesses of their obligations under the Order.

Penalties for Non-Compliance

Penalties for violations of this Order include the potential closure of worksites, fines of up to $1,000 and up to six months in prison.

Employer Takeaways

The Order confirms many of the safety protocols employers have been implementing and enforcing in light of the COVID-19 pandemic.  Employers should review and revise, if necessary, workplace policies for operations during the COVID-19 pandemic to ensure compliance with this Order.  We will continue monitoring developments in this area and provide updates as new information becomes available.

As you are aware, things are changing quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where things currently and generally stand.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal, which aggregates the firm’s various COVID-19 blog posts on a broad range of topics.

*Jamie Moelis is a law clerk in the New York office.