Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events
On October 28, 2020, Governor Murphy signed Executive Order No. 192[1] providing mandatory health and safety protocols aimed at protecting New Jersey employees during the COVID-19 pandemic. The executive order, which takes effect immediately, mandates that as of 6:00 a.m. on Thursday, November 5, 2020, all employers shall be required to adhere to the protocols set forth below. Any employer found to have violated the order may be subject to closure.
Social Distancing
Employees must maintain at least six feet of distance from one another wherever possible, including but not limited to during worksite meetings, orientations and similar activities that would traditionally require individuals to be present in a single room and in close proximity, in common areas such as restrooms and breakrooms, and when individuals are entering and exiting the workplace. Where the nature of an employee’s work or the work area does not allow for six feet of distance to be maintained, employers must require their employees to wear a mask and install physical barriers between workstations wherever possible.
Face Masks or Coverings
Employees, customers, visitors, and other individuals entering the worksite must wear face masks while on the premises where practicable, in accordance with Centers for Disease Control and Prevention (“CDC”) recommendations. Employers must make masks available to their employees, at the employer’s expense. Those who refuse to wear a mask may be denied entry into the workplace, except when doing so would violate State or federal law. Where an employee cannot wear a mask because of a disability, an employer may, consistent with the Americans with Disabilities Act (“ADA”) and/or New Jersey Law Against Discrimination (“NJLAD”), request that the employee produce medical documentation to support the employee’s claim. Under these circumstances, the employer may be required to provide the employee with a reasonable accommodation unless doing so would be an undue hardship on the employer’s operations. Where a customer or visitor declines to wear a face mask because of a disability, however, neither the employer nor its employees may require such person to produce medical documentation verifying the stated condition.
Employees may remove face masks within the workplace when situated at their workstations and more than six feet from other individuals at the workplace, or when an individual is alone in a walled office.
Employee Screening
Employers are to conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, consistent with CDC guidance. Employees who appear to have COVID-19 symptoms, as defined by the CDC, upon arrival at work or who become sick during the day must be immediately sent home. In the event of a known exposure in the workplace (according to the CDC Guidance, having “close contact” – within six feet for a total of 15 minutes or more – with an infected individual), employers must promptly notify employees, keeping in mind that any such notice should comply with confidentiality requirements set forth in the ADA and any other applicable laws.
Additional Safety Protocols
Employers shall be required to provide employees with hand sanitizer and/or sanitizing wipes, and to encourage the practice of regular hand washing and good hygiene. Employers must also provide employees with break time for repeated hand washing throughout the workday and access to adequate hand washing facilities. Employers may also require employees to wear gloves provided such gloves are made available to employees at the employer’s expense. All high-touch and commonly used areas must be routinely cleaned as well.
Employee Complaints and Training
Under the Order, the New Jersey Department of Labor (“NJDOL”) will work with the Department of Health to address workplace complaints. The NJDOL’s role will include establishing an intake form on its website to receive complaints and developing an investigation and inspection protocol, including the issuing of subpoenas to gather relevant information, to review any such complaints.
The Order further directs the NJDOL to provide compliance and safety training for employees and employers regarding their rights and obligations during the pandemic.
Many aspects of the Governor’s order may not impose added burdens on those employers who have already implemented the now mandated protocols. However, the new health screening requirement will impose additional administrative and economic burdens on employers who must now process the screening information and take appropriate action if risks are identified. In addition, the encouragement of complaints for non-compliance will likely result in DOL actions, including shutdowns, against employers already reeling from the prospect of liability for workplace exposures and who are urging legislative efforts to shield them from liability if they are making reasonable efforts to protect employees in the workplace. Small employers with limited staffing and economic resources will be especially impacted by these new mandates.
Should you have any questions regarding Executive Order 192 or need assistance in developing a compliance plan, please contact our Labor & Employment attorneys here at Lindabury, McCormick, Estabrook & Cooper, P.C.
[1] A state executive order is a directive issued by the governor that regulates state operations and certain aspects of citizen life. While executive orders are not the same as statutes passed by the state legislature, compliance with any such order is not voluntary and may be enforced by all levels of state government. The penalties for a violation of an executive order are outlined in N.J.S.A. App. A:9-49 and -50.