Governor Murphy Issues Executive Order Creating Mandatory Health and Safety Requirements at Businesses

Governor Murphy’s Executive Order 192, issued on October 28, 2020 (the “Order”), requires every business, nonprofit, and governmental or educational entity in the State “that requires or permits its workforce…to be physically present at a worksite” to follow a uniform set of public health measures to slow the spread of COVID-19. The Order becomes effective at 6:00 a.m. on November 5, 2020.

The Order mandates ten specific actions that businesses must take:

1. Enable employees to remain at least six feet apart at all times. When employees cannot maintain this distance, businesses must require employees to wear face masks and shall install physical barriers between workstations wherever possible.
2. Require that employees, customers, visitors, and other people entering the worksite wear cloth or disposable face masks while on the premises, in accordance with Centers for Disease Control and Prevention (CDC) recommendations. The only exceptions to this directive are for individuals under two years of age or where it is impracticable for a person to wear a face mask, such as when the individual is eating or drinking or where a service being provided by the employer cannot be performed on someone wearing a mask. Businesses must make face masks available, at the businesses’ expense, to their employees. Businesses may permit employees to remove face masks when the employees are situated at their workstations and are more than six feet from others at the workplace, or when individuals are alone in walled offices. Businesses may deny entry to any employees, customers, or visitors who decline to wear face masks, except when doing so would violate State or federal law.
3. Provide sanitization materials, such as hand sanitizer that contains at least 60 percent alcohol and sanitizing wipes that are approved by the United States Environmental Protection Agency for the COVID-19 virus, to employees, customers, and visitors at no cost to those individuals.
4. Ensure that employees practice regular hand hygiene, particularly when they are interacting with the public, and provide employees break time for repeated handwashing throughout the workday, as well as access to adequate hand washing facilities. Businesses may adopt policies that require employees to wear gloves in addition to regular hand hygiene. If a business requires its employees to wear gloves while at the worksite, the business must provide gloves to its employees.
5. Routinely clean and disinfect all high-touch areas in accordance with the New Jersey Department of Health (NJDOH) and CDC guidelines, particularly in spaces that are accessible to employees, customers, or other persons, including, but not limited to, restrooms, hand rails, door knobs, other common surfaces, safety equipment, and other frequently touched surfaces, and ensure cleaning procedures following a known or potential exposure (discussed below) are in compliance with CDC recommendations.
6. Prior to each shift, conduct daily health checks of employees. This includes temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, consistent with the CDC’s guidance. This information must be collected in a manner consistent with the confidentiality requirements of the Americans with Disabilities Act (ADA), New Jersey Law Against Discrimination (NJLAD), and any other applicable laws, including any guidance from the Equal Employment Opportunity Commission (EEOC) and the New Jersey Division on Civil Rights.
7. Immediately separate and send home employees who appear to have symptoms consistent with COVID-19 illness, as defined by the CDC, upon arrival at work or who become sick during the day. Businesses must continue to follow all applicable State and federal laws regarding sick leave.
8. Promptly notify all employees of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the ADA, other applicable laws, and guidance from the EEOC.
9. Clean and disinfect the worksite in accordance with CDC guidelines when an employee at the site has been diagnosed with COVID-19 infection.
10. Follow all guidelines and directives issued by the NJDOH, CDC, and Occupational Safety and Health Administration (OSHA), as applicable, for maintaining a clean, safe, and healthy work environment.

Businesses must be aware that the Order provides additional powers to other State agencies. Specifically, the NJDOH is empowered to impose on businesses additional health and safety standards relevant to COVID-19. The New Jersey Department of Labor and Workforce Development (NJDOL) is also authorized to provide support for enforcement of the Order, including the creation of an intake mechanism to receive complaints from employees regarding violations of the health and safety protocols outlined in this Order.

The Order makes clear that it does not create a private right of action to enforce these requirements. It also clarifies that the provisions do not apply if they interfere with the operational duties of emergency workers and other personnel; nor do the provisions apply to the United States government or religious institutions to the extent that application of the health and safety protocols would prohibit the free exercise of religion.

There is also a provision within the Order that prohibits any municipality, county, or other agency or political subdivision in the State to enact or enforce any order, rule, regulation, ordinance, or resolution that will or might in any way conflict with any of the provisions of the Order, or that will or might in any way interfere with or impede its achievement.

Because the situation regarding the COVID-19 response is extremely fluid, it is possible that the rules pertaining to business operations will continue to change.