Tagged: COVID-19

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: 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. 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...

Permits to Be Extended Under Permit Extension Act of 2020 Must Be Registered by October 8, 2020

We previously reported on the adoption of the Permit Extension Act of 2020, which provided a mechanism for tolling or extension of permits and approvals during the public health emergency associated with COVID-19, and extending those approvals for “at least six months beyond the conclusion” of the associated extension period. Under the Permit Extension Act of 2020, all approvals that are subject to tolling or extension were required to be registered “with the department” within 30 days of the publication of a notice in the New Jersey Register. That registration deadline has now been established as October 8, 2020. Regardless of whether your permit or approval expires in the next few months or late next year, it may be prudent to register now, particularly given the differences between the prior iterations of the Permit Extension Act and the present statutory language, and the lack of a clear end of the present public health emergency. The Department of Environmental Protection published a notice in the New Jersey Register on September 8, 2020, announcing that the registration period for approvals has begun. Notably, the notice provides that “[t]his registration requirement applies to specified permits, approvals, and deadlines from a broad range of State and local entities – not just the Department.” It is not clear under the...

A Look at the Nine-Month State Budget Proposed By Governor Murphy

Governor Murphy presented a nine-month budget on August 25, 2020, for the abbreviated State Fiscal Year starting October 1, 2020. Relying on a mix of borrowing, tax increase, and budget cuts, the Governor’s proposal for the nine-month fiscal year proposes $32.4 billion in spending, with a proposed budget surplus of $2.2 billion. Coupled with the temporary three-month budget effective July 1 to September 30, 2020, total spending over the twelve-month period would total slightly more than $40 billion. The Governor’s Budget Proposal estimates that roughly $6.2 billion of funding is required to offset anticipated lost revenues from COVID-19. To make up for that shortfall, the Governor is proposing to borrow $4.0 billion as authorized by the “COVID-19 Emergency Bond Act.” The New Jersey Supreme Court recently upheld the Act as constitutionally permissible under the Emergency Exception of the Debt Limitation Clause. An additional $1.0 billion in tax increases and $1.2 billion in programmatic cuts are also proposed. The two main tax increases proposed include a tax of 10.75 percent on income over $1.0 million and an extension of the Corporate Business Tax surcharge of 2.5 percent. The Budget Proposal does maintain some programmatic spending at levels equal to that of the prior fiscal year and proposes new spending. For example, there are no cuts to...

EEOC Updates “COVID-19 Technical Assistance Questions and Answers” with a Focus on Return-to-Work Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) is continuing to offer COVID-19 related guidance to support employers and employees in navigating the workplace during the pandemic. As we discussed in a previous blog post, the EEOC updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance (first published in 2009) to specifically address the COVID-19 pandemic. In addition to the Pandemic Preparedness guidance, the EEOC has issued What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, technical assistance guidance that contains numerous COVID-19 related questions and answers. Similar to the pandemic preparedness guidance, the technical assistance addresses employer’s obligations under the Americans with Disabilities Act (ADA), specifically as they relate to accommodation requests and medical exams due to COVID-19, as well as other COVID-19 related workplace issues. The EEOC has continued to regularly update the technical assistance since its initial publication in March 2020, with the most recent updates in June 2020. The EEOC has explained that EEO laws like the ADA and Rehabilitation Act continue to apply during the COVID-19 pandemic, but do not interfere with or prevent employers from following guidelines and suggestions made by the Centers for Disease Control and Prevention (CDC) or state and local public health authorities concerning preventative...

Permit Extension Act of 2020 Alters Timing for Applications for Development, and Extends Certain Existing Approvals During COVID-19 Public Health Emergency

On July 1, 2020, Governor Murphy signed the Permit Extension Act of 2020, enacted as P.L. 2020, c. 53, a stand-alone piece of legislation modifying timelines for review of applications for development before the land use boards of the State of New Jersey and tolling existing development approvals that have been adversely affected by the COVID-19 public health emergency. This legislation ends a saga that saw the proposal of an amendment to the Permit Extension Act of 2008, which was enacted following the Great Recession; a conditional veto of that legislation; and the concurrence of both houses of the New Jersey legislature with the language of the conditional veto message. This new law will provide significant help to developers throughout New Jersey who were forced, whether by governmental order or economic infeasibility, to put projects on hold during the course of the present public health emergency. However, there are potential pitfalls of which developers should be aware, as set forth below, including a requirement that all state-level permits that developers wish to have extended be registered. The Permit Extension Act of 2020 provides as follows: Scope: Much like the original Permit Extension Act, this law serves to extend a wide variety of permits, including, but not limited to, soil conservation district approvals, waterfront development permits,...

Issues for NJ and NY Retailers and Food and Beverage Establishments to Consider Upon Reopening for Outdoor Sales and Service

On June 3, 2020, New Jersey Governor Phil Murphy signed Executive Order No. 150 (the “Order”), which permitted, effective June 15, 2020, restaurants and other food and beverage establishments to offer on-site outdoor service. The Order also allowed municipalities to make outdoor shared spaces, such as sidewalks and streets, available to these establishments. Previously, these establishments had been limited to offering take-out services as a result of executive orders issued in response to the ongoing COVID-19 health emergency. Simultaneous with the issuance of the Order, the New Jersey Division of Alcoholic Beverage Control (NJABC) issued a special ruling to create a COVID-19 Expansion of Premises Permit (the “Special Ruling”). We discussed the special ruling here. Similarly, the State of New York – on a region-by-region basis – is entering Phase 2 of its reopening plan in response to the COVID-19 health emergency, and the New York State Liquor Authority (NYSLA) issued guidance to permit liquor licensees with on-premises service to resume outdoor, on-premises service of alcoholic beverages and food. We discussed the guidance here. In sum, both states have taken significant steps to provide relief to business establishments that have been hurt by the COVID-19 health emergency. These measures allow establishments to return to some semblance of normal operations. There are, however, still many unanswered...

New York State Liquor Authority Issues Guidance on Outdoor Expansion of Licensed Premises for Phase 2 Reopening

On June 4, 2020, the New York State Liquor Authority (SLA) issued guidance to licensees in regions of the state of New York that have entered Phase 2 of the state’s reopening plan in response to the COVID-19 health emergency (“SLA Guidance”). The SLA Guidance applies to licensees that possess on-premises service privileges under New York’s Alcoholic Beverage Control Law (“ABC Law”), and it permits these licensees to resume outdoor, on-premises service of alcoholic beverages and food. The SLA Guidance, summarized below, shall remain in effect until July 6, 2020 and may be extended or reduced depending on the circumstances. It specifically provides guidance on how outdoor consumption shall be implemented and how licensees may expand the licensed premises into outdoor spaces, and it also includes a question and answer (Q&A) section that provides guidance to municipalities seeking to extend licensed premises. Outdoor Consumption The consumption of food and alcoholic beverages must occur in outdoor, open-air areas without fixed roofs, and patrons are required to be seated at tables, bars, counters, or similar contrivances. The Q&A section provides that a fixed roof is any overhead structure covering an outdoor seating area that would not reasonably be viewed as temporary. Awnings or covers that are temporary or seasonal are therefore permitted. Social distancing measures must be...

NJABC Issues Special Ruling Creating COVID-19 Expansion Permit and Provides Guidance on To-Go Cocktails

Earlier this month, the New Jersey Division of Alcoholic Beverage Control (“Division”) issued a special ruling to create temporary COVID-19 permits to expand licensed premises and an advisory notice regarding cocktails-to-go. These are summarized briefly below. Special Ruling Establishing Temporary COVID-19 Permit to Expand Licensed Premises This special ruling issued on June 3, 2020 establishes a COVID-19 Expansion of Premises Permit (“COVID-19 Expansion Permit”) to coincide with Executive Order No. 150, which allows licensees or permittees with on-premises retail consumption privileges to reopen and serve patrons in outdoor areas. The COVID-19 Expansion Permit allows the licensees and permittees to expand their licensed premises into outdoor areas, either contiguous or non-contiguous to their permanently licensed premises. All licensees and permittees with on-premises retail consumption privileges may apply for this permit, but no permit issued would be effective before June 15, 2020. The special ruling sets forth certain criteria that must be met for issuance of the COVID-19 Expansion Permit. In all cases, the licensee is required to demonstrate that it has a possessory interest and control over the expansion areas, and that it will exercise only the same privileges afforded to it on its existing licensed premises. For example, licensees that offer food service on their licensed premises must do so on the expanded premises. Any...

Reopening Considerations for New Jersey: What Employers Need to Know About OSHA

As New Jersey begins to reopen under Governor Murphy’s reopening plan and more employees prepare to return to their physical workplaces, employers must continue to navigate a myriad of federal, state, and local guidance regarding how to best protect their workforces and prevent the spread of COVID-19. While many employers, particularly those outside of the construction industry, may not be used to regular dealings with the United States Department of Labor Occupational Safety and Health Administration (OSHA), all employers must consider OSHA’s COVID-19 Guidelines as they prepare reopening plans. While OSHA’s reopening guidance is advisory in nature, employers should remember that the Occupational Safety and Health Act’s (“OSH Act”) General Duty Clause (Section 5(a)(1)) requires all employers to provide employees with workplaces that are free from recognized harms that are likely to cause death or serious physical harm, which could include exposure to COVID-19. Thus, employers should be careful to ensure that their reopening plans comply with OSHA’s guidelines (along with more stringent state or local guidelines if they exist). The OSHA Guidelines categorize risk of worker exposure to COVID-19 from low to very high and lay out specific measures of protection that are recommended at each risk level. Employers should consult this portion of the Guidelines for specific guidance. The Guidelines also outline more...

Internal Investigations and Compliance in a Post-Pandemic Environment: Risks and Opportunities

The COVID-19 pandemic has presented not only novel challenges, but also opportunities for companies hoping to enhance or regain productivity while preventing wrongdoing and maintaining robust compliance functions. As workplaces reopen, historical challenges will persist and new risks will emerge. To be best positioned during this transition phase and beyond, companies should embrace the opportunity to evaluate their existing compliance processes and make the adjustments now that are necessary to adapt to a risk landscape that will likely never again be the same. Empower Legal, Compliance, and Investigative Resources Responsible companies will not be receptive to attempts to excuse misconduct due to the pandemic, nor will regulators. After all, there will be no “pandemic defense” to wrongdoing, and hindsight tends to be unforgiving—particularly through the lens of regulators looking at current events months or years from now. And as businesses emerge from state stay-at-home orders, an increased focus on productivity threatens to exacerbate the already heightened risk environment. It is critical that compliance, legal, and internal and external investigative resources be empowered to mitigate these risks effectively. Some immediate mitigation actions to be considered include: Conducting mandatory training on the enhanced risk environment and compliance best practices. Assessing existing policies and procedures, including those specific to internal investigations, and revamping them as needed to address...