EO 192 applies to every employer that requires or allows its workforce to be physically present at the worksite, including specifically all businesses, nonprofits, and governmental or educational entities.
On October 28, 2020, New Jersey Governor Phil Murphy signed Executive Order 192, which requires employers to implement certain safety measures designed to protect employees, customers and others against exposure to COVID-19. While most states and municipalities recommend similar safety measures, New Jersey is one of a few states to mandate such requirements. Few, if any, of these protocols should come as a surprise to entities operating in New Jersey, as most align with the guidance provided by the Centers for Disease Control and Prevention, state and federal Departments of Health, and prior Executive Orders since the start of the pandemic. New Jersey employers and businesses are advised to implement the required measures by November 5, 2020, at 6:00 a.m., the effective date of the Executive Order.
Requirements of Executive Order 192 (EO 192)
EO 192 applies to every employer that requires or allows its workforce to be physically present at the worksite, including specifically all businesses, nonprofits, and governmental or educational entities (collectively referred to as “employers”).
At this point, most Americans are very familiar with the phrase “social distancing.” EO 192 reiterates this concept and requires employers to ensure that all individuals at the worksite maintain at least 6 feet of distance from one another to the maximum extent possible. If employees cannot maintain 6 feet of distance, employers must ensure employees wear masks and employers must install physical barriers between workstations, when possible.
Masks and Face Coverings
Masks and face coverings will remain a fixture in the daily lives of New Jersey residents (and most Americans) while the pandemic continues. EO 192 reminds employers that all employees, customers, visitors and other individuals entering the worksite are required to wear a cloth or disposable face mask while on the premises, with certain exceptions for eating or drinking or if a service is being performed on an individual who cannot wear a mask during the service. Employees do not need to wear masks if they are alone in an office or alone at a workstation and are at least 6 feet away from other individuals. Employers must make masks available to employees at no cost to the employees.
EO 192 also clarifies any confusion surrounding the enforceability of mask requirements by employers and businesses. Employers are expressly permitted to deny entry to any employee, customer, visitor or other individual who refuses to wear a mask, unless doing so would violate a state or federal law. If an individual cannot wear a mask due to a disability, employers should provide a reasonable accommodation, unless doing so would impose an undue hardship on the employer. Employers are permitted to require an employee to provide medical documentation showing that the employee cannot wear a mask due to a disability. Businesses cannot, however, require customers to provide medical documentation.
Sanitation and Cleaning Supplies
It goes without saying that employees should be washing their hands regularly throughout the workday. To ensure this is happening, EO 192 requires employers to provide employees with break time to wash their hands and access to hand washing facilities. Employers must also provide “sanitization materials” to employees, customers, visitors and other individuals at no cost to those individuals. Sanitization materials include hand sanitizer that contains at least 60 percent alcohol and sanitizing wipes that are approved for the COVID-19 virus.
Employers must also continue to routinely clean and disinfect all high-touch surfaces (such as doorknobs, hand rails, shared equipment, etc.) and common areas (like bathrooms, break rooms, etc.).
Daily Symptom Screening
One of the most notable takeaways from EO 192 is the requirement that employers screen employees for symptoms of COVID-19. New Jersey previously recommended such screenings for most employers, but stopped short of mandating it. As of November 5, 2020, employers must conduct daily health checks of employees prior to the start of each shift. This can be accomplished by way of “temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires.”
Any employee showing symptoms must be separated from other employees and sent home. Employers are reminded that absences due to COVID-19 may be covered by the New Jersey Earned Sick Leave Law, the New Jersey Family Leave Act, the Family and Medical Leave Act and/or the Families First Coronavirus Response Act. For more information, see our prior Alerts from April 16 and March 19.
Enforcement Mechanisms and Penalties for Violations
EO 192 deputizes the Commissioner of the Department of Health (DOH) and the Commissioner of the Department of Labor and Workforce Development (DOLWD) with the power to enforce compliance with EO 192. In accordance with EO 192, the DOH and DOLWD shall confer and establish an “intake mechanism” for complaints from employees and individuals about noncompliance with the health and safety protocols of EO 192. How that mechanism will operate remains to be seen, but EO 192 specifically states that the DOLWD will be permitted to conduct employee and employer interviews and workplace inspections, as well as issue subpoenas for information in response to a complaint.
Employers who violate EO 192, as well as individuals who are found to have aided and abetted a violation of EO 192, can be charged with a disorderly persons offense, which carries the potential of up to 6 months in prison and fines of up to $1,000, or both. Employers can also face closure of their business or operations for violations.
What This Means for New Jersey Employers
Many employers have already implemented most of the protective measures outlined in EO 192, although some may need to purchase masks and establish a daily health screening process for employees in short order. If employers have not been conducting daily symptom screenings, they should contact counsel to determine how best to monitor employee symptoms while also maintaining the confidentiality of employees’ private medical information as required by the New Jersey Law Against Discrimination and the Americans with Disabilities Act.
Employers who have concerns or questions about enforcing face masks―an issue that has become increasingly divisive―should also contact counsel to discuss how to approach the issue and the legal obligation to engage in the interactive process concerning reasonable accommodations to persons with disabilities. There are a number of ways to accommodate those who are legitimately unable to wear face masks that will still protect employees and other individuals.
In light of EO 192, it is more important now than ever for employers to establish or update their COVID-19 health and safety plans, particularly given that health and safety guidance has evolved significantly since the onset of the pandemic in March 2020. Employers will also want to make sure that managers and supervisors are adhering to and enforcing these protocols at all locations in New Jersey, and that employees are well trained on the employer’s COVID-19 health and safety plan. Because EO 192 provides broad authority to the DOLWD to investigate employee complaints about COVID-19 safety compliance, employers should establish their own internal complaint process for COVID-19-related concerns and ensure employees are familiar with the process. Doing so will enable employers to address any potential issues and will decrease the likelihood of government intervention resulting from employee complaints.
About Duane Morris
For More Information
If you have any questions about this Alert, please contact Kathleen O'Malley, Danielle M. Dwyer, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.