Alerts and Updates

New Jersey and New York Governors Mandate Masks and Other Measures to Protect Workers and Citizens

April 15, 2020

Overall, these orders seek to provide additional protections for employees and customers of industries that have been permitted to continue in-person operations.

Governors Cuomo and Murphy announced additional measures intended to protect workers and citizens in New York and New Jersey.  

On April 12, 2020, New York Governor Andrew Cuomo issued Executive Order 202.16, which will require employees of essential businesses who are present in the workplace to wear face coverings when in direct contact with customers or members of the public. This order goes into effect April 15, 2020, at 8:00 p.m.

On April 8, 2020, New Jersey Governor Phil Murphy issued Executive Order 122, which created new restrictions and requirements applicable to certain employers across the state, specifically those involved in warehousing, manufacturing, essential retail businesses and construction. In addition to closing all nonessential construction, the order mandates various new requirements employers must implement such as policies for employees to wear cloth face coverings and gloves. Executive Order 122 went into effect on April 10 at 8:00 p.m.

Governor Murphy issued a subsequent order, Executive Order 125, on April 11, 2020, imposing similar (but not identical) requirements on transportation carriers and food establishments. Executive Order 125 went into effect on April 13 at 8:00 p.m. Additional information about both of the New Jersey orders is below.

Overall, these orders seek to provide additional protections for employees and customers of industries that have been permitted to continue in-person operations. A wave of such orders is expected throughout the country in the response to the COVID-19 pandemic.

The Impact of New Jersey Executive Order 122 on Warehousing, Manufacturing, Essential Retail Businesses and Essential Construction

Under Executive Order 122, all warehousing businesses, manufacturing businesses, essential retail businesses and businesses performing essential construction projects must adopt policies and practices that, at a minimum, address the following:

  1. Such employers must immediately separate and send home workers who appear to have symptoms consistent with COVID-19 upon arrival at work or who become sick during the day;
  2. Such employers must promptly notify workers of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the Americans with Disabilities Act and any other applicable laws;
  3. Such employers must clean and disinfect the worksite in accordance with Centers for Disease Control and Prevention (CDC) guidelines when a worker at the site has been diagnosed with COVID-19; and
  4. Such employers must continue to follow guidelines and directives issued by the New Jersey Department of Health, the CDC and the Occupational Safety and Health Administration (OSHA), as applicable, for maintaining a clean, safe and healthy work environment.

In addition, all manufacturing businesses, warehousing businesses and businesses engaged in essential construction projects must adopt policies that, at minimum, meet these restrictions and requirements:

  1. Prohibit nonessential visitors from entering the worksite;
  2. Limit worksite meetings, inductions and workgroups to groups of fewer than 10 individuals;
  3. Require individuals to maintain 6 feet or more distance between them wherever possible;
  4. Stagger work start and stop times where practicable to limit the number of individuals entering and leaving the worksite concurrently;
  5. Stagger lunch breaks and work times where practicable to enable operations to safely continue while utilizing the least number of individuals possible at the site;
  6. Restrict the number of individuals who can access common areas, such as restrooms and breakrooms, concurrently;
  7. Require workers and visitors to wear cloth face coverings, in accordance with CDC recommendations, while on the premises, except where doing so would inhibit the individual’s health or if the individual is under 2 years of age, and require workers to wear gloves while on the premises;
  8. Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
  9. Limit sharing of tools, equipment and machinery;
  10. Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to workers and visitors; and
  11. Require frequent sanitization of high-touch areas like restrooms, breakrooms, equipment and machinery.

Finally, essential retail businesses that are permitted to maintain in-person operations (such as grocery stores and pharmacies) must adopt policies that:

  1. Limit occupancy at 50 percent of the stated maximum store capacity, if applicable, at any one time;
  2. Establish hours of operation, wherever possible, that permit access solely to high-risk individuals, as defined by the CDC;
  3. Install a physical barrier, such as a shield guard, between customers and cashiers/baggers wherever feasible or otherwise ensure 6 feet of distance between those individuals, except at the moment of payment and/or exchange of goods;
  4. Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
  5. Provide employees break time for repeated handwashing throughout the workday;
  6. Arrange for contactless pay options, pickup and/or delivery of goods wherever feasible. Such policies shall, wherever possible, consider populations that do not have access to internet service;
  7. Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to staff and customers;
  8. Require frequent sanitization of high-touch areas like restrooms, credit card machines, keypads, counters and shopping carts;
  9. Place conspicuous signage at entrances and throughout the store, if applicable, alerting staff and customers to the required 6 feet of physical distance;
  10. Demarcate 6 feet of spacing in check-out lines to demonstrate appropriate spacing for social distancing; and
  11. Require workers and customers to wear cloth face coverings while on the premises, except where doing so would inhibit that individual’s health or where the individual is under 2 years of age, and require workers to wear gloves when in contact with customers or goods.

Employers, at their own expense, must supply employees with the required face coverings and gloves. Employer policies should not prevent workers from wearing a surgical-grade mask or other more-protective face coverings if the individual is already in possession of such equipment, or if the business is otherwise required to provide such worker with more protective equipment due to the nature of the work involved.

If an individual declines to wear a face covering on the premises due to a medical condition that inhibits such usage, the employer may not require the individual to produce medical documentation verifying the stated condition.

The Impact of New Jersey Executive Order 125 on Transportation Carriers and Food Establishments

Under Executive Order 125, all restaurants, cafeterias, dining establishments, food courts and bars must adopt policies that, at minimum, do the following:

  1. Limit occupancy at 10 percent of the stated maximum capacity, wherever feasible;
  2. Ensure 6 feet of distance between workers and customers, except at the moment of payment and/or exchange of goods;
  3. Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
  4. Provide employees break time for repeated handwashing throughout the workday;
  5. Arrange for contactless pay and pickup/delivery options wherever feasible. Such policies shall, wherever possible, consider populations that do not have access to internet service;
  6. Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to staff;
  7. Require frequent sanitization of high-touch areas like credit card machines, keypads and counters to which the public and workers have access;
  8. Place conspicuous signage at entrances and throughout the food business, if applicable, alerting staff and customers to the required 6 feet of physical distance; and
  9. Require workers to wear cloth face coverings and gloves while on the premises, except where doing so would inhibit that worker’s health, and require workers to wear gloves when in contact with customers or goods. Businesses must provide, at their expense, such face coverings and gloves for their employees.

In addition, private transportation carriers, including unaffiliated private carriers and paratransit private carriers, must adopt policies that include, at minimum, the following requirements:

  1. Workers may limit occupancy at 50 percent of the stated maximum capacity in accordance with any guidelines instituted by the private carriers in consultation with New Jersey Transit operational divisions;
  2. Require infection control practices, such as coughing and sneezing etiquette and proper tissue usage and disposal;
  3. Arrange for contactless pay options, including EZ Wallet, across all modes of transportation wherever feasible;
  4. Place conspicuous signage throughout buses, if applicable, alerting workers and customers to the required 6 feet of physical distance;
  5. Require workers and customers to wear cloth face coverings except where doing so would inhibit that individual’s health or where the individual is under 2 years of age, and require workers to wear gloves when in contact with customers. Private carriers must provide, at their own expense, such face coverings and gloves for their workers, to the extent supplies are available.

Private carriers must also arrange for back door entry on buses wherever feasible, and take seats out of service near the bus operator when feasible to allow for proper social distancing from the bus operator.

What This Means for Employers

New York Executive Order 202.16 applies to all essential businesses and entities, though it only mandates the wearing of face coverings when employees are in direct contact with customers or members of the public. Employers must pay for and supply face coverings to employees, which may be difficult given that demand is high for such coverings but supplies are low. Until orders for these items are filled, employers should allow employees to wear homemade masks.

New Jersey Executive Orders 122 and 125 create checklists of protocols to be implemented by employers in the affected industries who must adopt the required policies and practices immediately.

Though some of the requirements have a bit of flexibility, others are more rigid. For example, employers required to stagger work start and stop times must do so “where practicable.” In contrast, the requirement to provide employees break time for repeated handwashing throughout the workday contains no such leeway.

Following the entry of the governors' executive orders, we await comments and guidance from OSHA and other administrative agencies on the protocols enacted pursuant to such executive authority. At this time, the CDC recommends wearing cloth facial coverings in public, but the recommendation is just that: a recommendation.

Employers should remain vigilant. States continue to release additional orders and requirements that affect business operations, and such orders often go into effect immediately, leaving employers little or no time to adapt. Meanwhile, the federal government is releasing its own guidance and mandates, which may or may not conflict with executive orders entered by governors in various states. Given the rapid-fire changes occurring almost daily, employers are advised to consult with counsel to ensure compliance with the ever-changing legal landscape applicable to their operations.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Kathleen O'Malley, Elizabeth Mincer, 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.