By Jennifer Barna of Epstein Becker & Green, P.C.
Published May 15, 2020; Original post here.
On May 13, 2020, New Jersey Governor Phil Murphy issued Executive Order 142, which allows for the resuming of non-essential construction projects (subject to certain conditions and restrictions), the reopening of retail businesses (curbside pickup only) and permitting public gatherings of more than 10 people so long as attendees stay in closed (or socially distant) vehicles. Some of the provisions of Executive Order 142 take effect immediately, and others at 6:00 a.m. on Monday, May 18, 2020.
Non-Essential Construction
Previously, Gov. Murphy permitted the operation of essential construction projects (with restrictions) pursuant to Executive Order 122 (which we wrote about here). Now, by Executive Order 142, he has allowed all construction projects to resume, on condition that the construction businesses adopt policies that include, at minimum, the following requirements:
- Prohibit non-essential visitors from entering the worksite;
- Engage in appropriate social distancing measures when picking up or delivering equipment or materials;
- Limit worksite meetings, inductions, and workgroups to groups of fewer than 10 individuals;
- Require individuals to maintain six feet or more distance between them wherever possible;
- Stagger work start and stop times where practicable to limit the number of individuals entering and leaving the worksite concurrently;
- Identify congested and “high-risk areas,” including but not limited to lunchrooms, breakrooms, portable rest rooms, and elevators, and limit the number of individuals at those sites concurrently where practicable;
- 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;
- 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 the individual is under two years of age, and require workers to wear gloves while on the premises. Businesses must provide, at their expense, such face coverings and gloves for their employees. If a visitor refuses to wear a cloth face covering for non-medical reasons and if such covering cannot be provided to the individual by the business at the point of entry, then the business must decline entry to the individual.. Where an individual declines to wear a face covering on the premises due to a medical condition that inhibits such usage, neither the business nor its staff shall require the individual to produce medical documentation verifying the stated condition;
- Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
- Limit sharing of tools, equipment, and machinery;
- Where running water is not available, provide portable washing stations with soap and/or alcohol-based hand sanitizers that have greater than 60% ethanol or 70% isopropanol;
- Require frequent sanitization of high-touch areas like restrooms, breakrooms, equipment, and machinery;
- When the worksite is an occupied residence, require workers to sanitize work areas and keep a distance of at least six feet from the occupants; and
- Place conspicuous signage at entrances and throughout the worksite detailing the above mandates.
This portion of Executive Order 142 is effective at 6:00 a.m. on Monday, May 18, 2020, and expressly supersedes certain relevant sections of Executive Order 122 and related Administrative Orders.
Non-Essential Retail
Non-Essential retail businesses will be permitted to reopen to the public as of 6:00 a.m. on May 18, 2020, but only if they adopt policies that include, at a minimum:
- Customers shall not be permitted to enter the brick-and-mortar premises, but shall be permitted to pick up goods outside of the establishment that they have already ordered (“curbside pickup”);
- In-store operations shall be limited, wherever feasible, to those employees who are responsible for the operations required for curbside pickup;
- Customer transactions shall be handled in advance by phone, email, facsimile, or other means that avoid person-to-person contact, wherever feasible;
- Customers shall notify the retailer by text message, email, or phone once they arrive, whenever feasible, or make best efforts to schedule their arrival time in advance. The customer shall be asked to remain in their vehicle, if arriving by car, until store staff delivers the purchase;
- Designated employees shall bring goods outside of the retail establishment and place the goods directly in a customer’s vehicle whenever feasible; and
- Retail businesses operating in shopping malls are permitted to operate by curbside pickup, in accordance with the other requirements of this paragraph, but employees must bring the goods to customers at the exterior of the mall and shall place them directly in a customer’s vehicle whenever feasible. The indoor portions of shopping malls shall remain closed to the public, consistent with Gov. Murpy’s prior Executive Order 107 (which we wrote about here).
Additionally, non-essential retail business employers should, at a minimum:
- Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
- Provide employees break time for repeated handwashing throughout the workday;
- Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to staff;
- Require frequent sanitization of high-touch areas to which workers have access; and
- Require workers to wear cloth face coverings and gloves when interacting with other workers or customers 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.
Public Gatherings
Executive Order 142 states that any gathering that complies with the following rules will not violate Paragraph 5 of his prior Executive Order 107:
- Attendees participating in the gathering must arrive in a vehicle and they must remain in that same vehicle during the entire gathering;
- Each attendee’s vehicle must remain entirely closed at all times, meaning that the windows, doors, sunroofs, and tops of the vehicle must be closed at all times, unless:
- The vehicle is more than six feet from any other vehicle or individual, except for, as applicable, the limited number of individuals organizing or maintaining the gathering; or
- A law enforcement officer, appropriate public official, or private security guard asks any attendee to open the vehicle’s windows, doors, sunroofs, and/or tops.
- If there are individuals organizing or maintaining the gathering, and who are not in closed vehicles, such individuals must follow all applicable Executive Orders and Administrative Orders, and must wear cloth face coverings or more protective face coverings in any settings where other social distancing measures are difficult to maintain, except where doing so would inhibit that individual’s health; and
- To the degree that a gathering requires pre-payment, or seeks donations of any kind, contactless options for pre-payment or donation, such as online or by telephone, must be offered wherever feasible.
Executive Order 142 clarifies that: (a) the above provisions supersede prior applicable Executive Orders to the extent they prohibited recreational and entertainment events where customers do not leave their vehicles; and (b) if any individual leaves their home to participate in any gathering that complies with the above, it shall not be a violation of prior Executive Order 107.
The above provisions regarding public gatherings are effective immediately.
Jennifer Barna is a Senior Counsel in the Employment, Labor & Workforce Management and Litigation practices, in the Newark, New Jersey office of Epstein Becker & Green. Her practice focuses on civil litigation and corporate counseling in the areas of employment law and complex commercial matters. She can be reached at jbarna@ebglaw.com or 973.639.5232.