Effective 6:00 am on Thursday, November 5, 2020, pursuant to Governor Phil Murphy’s October 28, 2020 Executive Order 192 (“EO 192” and “Order”), every New Jersey business which operates with employees and customers physical present at the worksite, will be required to comply with the State’s new COVID-19 workplace safety protocols. The Order is part of Governor Murphy’s response to the State’s worsening pandemic and the Federal Occupational Safety and Health Administration’s (“OSHA”) decision not to issue COVID-19 specific standards. In addition to the enactment of new workplace safety rules, the Order establishes a new State complaint and investigation procedure to address non-compliance.
The Executive Order applies to every New Jersey business, non-profit, governmental or educational entity (identified by the Order as an “employer”), not specifically excluded and referenced below, which requires or permits its employees to be physically present at the workplace. Pursuant to the Order, employers are required to do the following:
- Require individuals in the workplace maintain at least six feet of distance from each other, to the maximum extent possible. If individuals cannot maintain the distance due to the nature of the work or work area, employers must ensure that each employee wears a mask and install physical barriers between workstations, whenever possible.
- Compel employees, customers, visitors and others entering the property to wear cloth or disposable face masks while on the premises, unless impracticable, because the individual is eating or drinking, receiving a service that cannot be performed on a person wearing a mask, or the customer/visitor is under two years of age. Employers may permit employees to remove their masks when employees are at their workstations and are more than six feet from one another, or if the employee is alone in a walled office.
- Provide employees with face masks, at the Employer’s expense.
- Deny entry to any employee who refuses to wear a face mask, except where such denial would violate State or Federal law, i.e., where a reasonable accommodation may be required pursuant to the Americans with Disabilities Act (“ADA”) and/or the New Jersey Law against Discrimination (“NJLAD”). Pursuant to the Order, an employer may require an employee requesting an accommodation to produce medical documentation supporting his/her claim that he/she cannot wear a face mask due to a disability.
- Deny entry to any customer or visitor that refuses to wear a face mask, unless said denial would violate State or Federal law. The employer and/or its employees may not require a customer/visitor to produce medical documentation verifying their claimed condition, unless production is otherwise required by State or Federal law.
- Provide sanitization materials, i.e., hand sanitizer that contains at least 60% alcohol and sanitizing wipes, to employees, customers and/or visitors at no cost.
- Ensure that employees practice regular hand hygiene and provide employees with break time to repeatedly wash their hands throughout the workday. To facilitate this hand hygiene, employers must provide employees with access to hand washing facilities. If an employer requires its employees to wear gloves while at the worksite, the employer must provide the gloves to its employees.
- Routinely clean and disinfect all high-touch areas accessible to employees, customers, or other individuals, i.e., restrooms, hand rails, door knobs, common surfaces, safety or other equipment, in conformity with the guidelines and cleaning procedures established by the NJ Department of Health (“DOH”) and U.S. Centers for Disease Control and Prevention (“CDC”).
- Conduct daily health screens of employees, prior to each shift – temperature checks, visual symptom screens, self-assessment checklists and/or health questionnaires – in accordance with CDC guidance for COVID-19 symptoms. Said screens must be conducted in a manner consistent with the requirements of the ADA, NJLAD, other applicable laws and/or guidance disseminated by the Equal Employment Opportunity Commission (“EEOC”) and the New Jersey Division on Civil Rights (“NJDCR”).
- Immediately separate and remove from the workplace, any employees who exhibits COVID-19 symptoms (as published and updated by the CDC).
- Notify in a timely manner, all employees of any known COVID-19 exposure at the worksite, in accordance with the ADA’s requirements and EEOC guidance.
- Clean and disinfect the workplace in accordance with the CDC’s guidelines and procedures after an employee, at the site, is diagnosed with COVID-19.
- Follow the DOH, OSHA and CDC’s guidelines and directives for maintaining a clean, safe and healthy workplace.
The Order does not apply when its new workplace safety protocols interfere with the operational duties of any first responders, emergency management personnel, emergency dispatchers, health care personnel, public health 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.
Additionally, the Order does not apply to the United States government or any religious institutions, to the extent that the application of the Order’s protocols “would prohibit the free exercise of religion.”
The Order authorizes the Commissioner of the DOH, in consultation with the Commissioner of the Department of Labor and Workforce Development (“DLWD”), to develop a process for the intake and investigation of complaints. Pursuant to that investigative procedure, the Agencies will have new broader authority, which includes the power to issue subpoenas, conduct workplace inspections, and facilitate employee and/or employer interviews. The Order makes clear, at a minimum, the Agencies’ process must provide employers with “an opportunity to correct the alleged or confirmed deficiency.” Where appropriate, the Agencies will coordinate and refer complaints to OSHA and Public Employees Occupational Safety and Health (“PEOSH”).
The Order explains that the Agencies have the authority to issues penalties for violations pursuant to N.J.S.A. § App. A:9-49 (“Violations as disorderly conduct; penalty; prosecution”) and N.J.S.A. Stat. Ann. § App. A:9-50, (“Aiding or abetting violation”) up to and including closure of the facility by the DOH under N.J.S.A. §26:13-8 (“Commissioner’s powers and duties over facilities during public health emergency; hearing.”).
The Governor explained, through the Executive Order, that the purpose of EO 192 is to “supplement” the requirements set forth in Executive Orders and/or Administrative Orders 122, 125, 142, 147, 149, 155, 157, 165, 175, 181 and 183. Paragraph 2(e) of EO 142, which limited workgroups to fewer than 10 people, is rescinded by EO 192.
Training and Notices
The Order directs the Commissioner of the DLWD to establish a program to provide compliance and safety training (in-person and virtually) for employers and employees on the new health and safety protocols (subject to funding availability). The Order also requires the development and issuance of notices and informational materials to inform workers of their rights under the new Order. This of course translates into a new positing obligation for employers once the DLWD develops its workplace guidance.
As a result of the Order, all New Jersey employers should adopt written COVID-19 protocols. Employers should also anticipate having to expend resources to ensure those protocols are compliant with the Order and prepared to respond to additional Agency investigations and/or inquiries. Employer should also expect that as a result of the new workplace safety protocol’s publicity, through compulsory postings, and an increase in potential workplace safety complaints, they may observe an increase in whistleblower claims.
Employers should take this opportunity to review their Human Resource Department and Workplace Safety policies and practices and ensure they are up to date with the many changes in this developing area of the law. For more information regarding this and other legal developments resulting from the the COVID-19 pandemic, please contact Douglas E. Solomon, Esq., Partner and Chair of the firm’s OSHA Practice Group via email or Paul H. Mazer, Esq. via email or 973-533-0777.