On October 28, 2020, Governor Phil Murphy signed Executive Order 192, which will require a series of workplace protections for workers beginning on November 5, 2020. Importantly, nothing in Executive Order 192 repeals, supersedes, or modifies the requirement of Executive Order 107 that requires businesses to “accommodate their workforce, wherever practical, for telework or work-from home arrangements.” Employers with in-person staffing are also expected to keep staffing to the “minimum number necessary” and to abide by all other restrictions regarding indoor capacity limitations.
Now, in addition to the prior requirements, workplaces that require or permit a workforce to be physically present at a worksite must, at minimum:
- Conduct daily health checks of employees prior to each shift. The Executive Order does not specify the manner, but does suggest methods such as temperature screenings, visual symptom checking, self-assessment checklists, or health questionnaires. Screenings must be conducted in a manner consistent with the confidentiality requirements of the Americans with Disabilities Act (ADA), New Jersey Law Against Discrimination (NJLAD), and guidance from the Equal Employment Opportunity Commission (EEOC).
- Require six feet of distance between people on the premises;
- Where six feet of distance is not possible, the employer must install physical barriers wherever possible and require the use of face masks.
- Require employees wear face masks (provided to employees at the employer’s expense), which can only be removed when the employee is situated at a work station more than six feet from others, when alone in a walled office, or when usage is not practical (such as while eating or drinking).
- Require customers, visitors, and anyone entering the premises to wear a face mask.
- Provide sanitation materials, such as hand sanitizer and wipes, to employees, customers, and visitors at no cost.
- Ensure employees practice regular hand hygiene and provide break time for handwashing.
- Routinely clean and disinfect all high‑touch areas, including restrooms, hand rails, door knobs, and safety equipment.
- Immediately send home any employee displaying symptoms of COVID-19.
- Promptly notify all employees of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the ADA and EEOC guidance.
- Clean and disinfect the worksite in accordance with CDC guidelines when an employee is diagnosed with COVID-19.
- Continue to follow guidelines and directives issued by the New Jersey Department of Health (DOH), Centers for Disease Control (CDC), and Occupational Safety and Health Administration (OSHA).
There is an exception to the above if these requirements interfere with the discharge of the operational duties of first responders, health care personnel, law enforcement, military, and other similar positions. The Executive Order also vests the Commissioner of the DOH with the ability to impose additional health and safety standards on employers.
While many of these requirements are consistent with practices already required of employers, two changes are notable. First, the implementation of daily screenings is a new requirement, although many employers already do this per CDC recommendations. Second, the Executive Order explicitly permits an employer to request documentation from any employee who claims that he or she cannot wear a face mask for medical disability reasons. This is a deviation from prior executive orders that explicitly prohibited employers from seeking documentation, in an effort to avoid overstraining the medical system. If an employee claims that he or she cannot wear a face mask due to a medical disability, the employer should engage in the interactive process under the ADA and NJLAD as it would with any accommodation request, including a request for medical documentation. Employers are still not permitted to request medical documentation from visitors or customers who claim that they cannot wear a face mask due to a medical disability. In these situations, the employer may be required to provide disability services or goods via a reasonable accommodation.
The New Jersey Department of Labor (NJDOL) is charged with establishing training for all workers and employers throughout the state and developing notices regarding these rights and obligations. It is expected that employers will have to post these notices and/or distribute them to their employees.
Finally, the Executive Order vests the Commissioner of the NJDOL with establishing a complaint procedure for any employers who violate the Executive Order. The Executive Order tasks the NJDOL and DOH with coordinating investigations into such complaints. For employers covered by the Public Employees Occupational Safety and Health (PEOSH), the complaints will also be shared with PEOSH. The agencies are also required to coordinate with any other relevant State or federal agencies.
Violations are punishable by fines up to $1,000, imprisonment up to six months, and/or closure of the business at the direction of the DOH.