Legal Blog

New Jersey Executive Order 192 Effective November 5, 2020 at 6:00 am

On October 30, 2020, Governor Murphy issued Executive Order 192 which requires businesses to implement mandatory safety standards. The Order takes effect on Thursday, November 5, 2020 at 6:00 am. The Governor explained the reason for the Order being:

…[N]ow that a more significant portion of the State’s workforce has returned to in-person work, and as the State’s economy continues to gradually reopen, it is necessary to ensure broad application of relevant health and safety standards to protect workers across all industries; and

…[G]iven the recent upticks in the rate of reported new cases across all counties in the State, the use of mandatory health and safety protocols for all industries can help guard against continuing spread and ensure that New Jersey’s workers feel safe and supported at their places of work…

As explained below, it is prudent for employers to have a written COVID-19 Policy. This Order sets the standard of care for employers. It would be prudent for employers to have a policy that is in accordance with this order. Such policy should be accompanied by a certification that the employees have read and reviewed the policy. The policy and accompanying materials would be helpful when faced with a COVID-related claim.

This Order applies to every business, non-profit, governmental or educational entity ( collectively “employers”), that requires or permits employees, whether in whole or in part to be physically present at the worksite. This Order applies to businesses even if they do not require their employees to be on site. If an employer allows employees on site, then the following standards must be in place:

  • Social Distance
    • Employers must require that all individuals maintain 6 feet distance in the workplace.
    • Where it is impossible for social distance, employers must ensure that all employees wear a mask and install physical barriers between work stations.
  • Face Coverings
    • All Employees must wear a mask. Employers may allow for employees to remove their masks when:
      • The employee is at their workstation and more than 6 feet from other individuals, or
      • When the employee is alone in a walled office.
    • All customers, visitors and other individuals entering the worksite must wear a mask.
    • NOTE: EMPLOYERS MUST PROVIDE MASKS FOR THEIR EMPLOYEES
    • Employers may deny entry to the worksite to any employee who does not wear a face mask.
    • Employers must accommodate employees who cannot wear a face mask because of a disability. Employers may require that employees submit medical documentation that they are unable to wear a face mask because of a disability.
      • NOTE: This is in accordance with the Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“NJLAD”).
  • Customers and Visitors
    • Employers may deny entry to the worksite to customers and visitors who do not wear a face mask.
      • NOTE: Employers must keep in mind ADA and NJLAD when denying entry.
  • Sanitization Materials
    • Employers must provide sanitization materials to employees, customers and visitors.
      • Employers must pay for the materials.
      • The sanitization materials must come at no cost to the employees, customers or visitors.
  • Ensure Employees Practice Hygiene
    • Employers must ensure that employees practice regular hand hygiene. Employers must provide employees break time for handwashing throughout the workday.
  • Workplace Sanitization
    • Employers must routinely clean and disinfect all high-touch areas in accordance with the DOH and CDC Guidelines.
  • Employee Screening
    • Prior to each shift, employers much conduct daily health checks such as:
      • temperature screenings.
      • visual symptoms checking.
      • self-assessment checklists.
      • health questionnaires.

NOTE: The Order does not require each of the above screening methods. The phrase “such as” implies that the above list are examples of what could be employed by employers.

  • Sick Employees
    • Employers must immediately separate and send home employees who are symptomatic.
    • Notify all employees of any known exposure to COVID-19.
    • Clean and disinfect areas in accordance with the CDC Guidance.

Exemption. The Order does allow for some exemptions. It reads that the standards listed above does not apply to the following industries if they “interfere with the discharge of the operational duties.” The industries listed are as follows: first responders, emergency management personnel, court personnel, law enforcement and corrections personnel, hazardous materials responders, transit workers, child protection and child welfare personnel, housing and shelter personnel, military employees, and governmental employees engaged in emergency response activities. Again, this does not mean that the aforementioned employers are exempt from the requirements of this Order. It simply means if the operational duties are interfered with, then employers can be exempted. Employers should consult with counsel when seeking such exemption from the Order.

VIOLATIONS OF THE ORDER

The state will create an “intake mechanism to receive complaints from individuals working in the state.” The Department of Labor and Workforce Development (“DOLWD”) shall undertake the investigation of all complaints, which can include a workplace inspection.

We can expect the state to promulgate penalties for violations. The Order also allows for the DOLWD to promulgate trainings and create notices for employers.

WHAT DOES THIS MEAN FOR NEW JERSEY EMPLOYERS?

This Order sets the standard of care for employers in New Jersey. Prudent employers should have the following in order to ensure compliance with this Order and to combat any Covid-related claims:

  • COVID-19 Policy.
  • Certification of Employees that they read and signed the Policy.
  • Employee Training of the Policy.
  • Employee Certification of Receipt of PPE.
  • Employee Screening Protocol.

Employers should consult with counsel regarding any questions relating to this Order.

ABOUT SUSIE CIRILLI

Susie M. Cirilli is a Labor & Employment attorney that assists clients with issues involving the ADA, FMLA, and Title VII claims. Susie litigates on matters related to hostile work environment, discrimination based on sex, sexual orientation, pregnancy, race and disability. Susie has experience representing employers in fact-finding conferences and mediations before the PHRC and the EEOC. Susie’s practice also consists of counseling and advising clients on employment matters. She often advises employers on day to day employment matters and assists her clients on employee issues such as hiring and terminations, which includes drafting and negotiating separation agreements. Susie has experience drafting and revising employment agreements, employee handbooks, non-compete and non-solicitation agreements. Susie is admitted in the Middle District and Eastern District of Pennsylvania. She is also admitted in the Federal Court for the District of New Jersey.

 

 

 

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