UPDATE: On May 26, 2021, Governor Murphy announced that he will be signing another Executive Order, effective Friday, June 4, 2021, that will: (1) Allow employers to implement policies for vaccinated employees to forego masking & social distancing; and (2) Rescind the requirement for mandatory remote work arrangements. We will provide further guidance on these changes when the Executive Order is issued.
On May 24, 2021, New Jersey Governor Phil Murphy announced that he is lifting the indoor mask mandate in most circumstances effective May 28, 2021. Many New Jersey employers interpreted this to mean that they may choose to eliminate mask requirements in their workplaces beginning this Friday. However, the issuance of Executive Order No. 242 (EO 242) proved to be much narrower when it comes to many employers. The Executive Order lifts the mask mandate for “indoor public spaces,” however, “indoor public spaces” explicitly does not include “indoor work spaces of employers, as defined in Executive Order No. 192 (2020) (EO 192), that do not open their indoor spaces to the public for purposes of sale of goods, attendance at an event or activity, or the provision of services.” In other words, EO 242 only lifts the mask mandate for employers that are open to the public.
The Order goes on to explicitly preserve all of the requirements in EO 192 for indoor workspaces not open to the public (the requirements of EO 192 are discussed in detail here). This includes social distancing, face coverings, and daily health screenings – all regardless of vaccination status. Given Governor Murphy’s comments during the press conference, in which he noted that New Jerseyans are traveling out of state to eat or shop without a mask, the move seems to be aimed only at countering this economic impact. The change appears illogical to many, as vaccinated employees at an employer not open to the public must wear a mask, while an unvaccinated employee at an employer open to the public can work without a mask.
The Governor’s Order reserved the right of owners of businesses open to the public to impose their own mask requirements and no entity can implement a rule that prohibits mask wearing.
In a point of frustration for many New Jersey employers, the Executive Order also does nothing to rescind or loosen the requirement of Executive Order No. 107 (reaffirmed in EO 192) that employers must accommodate remote-capable employees with telework arrangements wherever practical. Hopefully, New Jersey will address these issues in the coming weeks, but for now, employers who operate non-public workplaces must continue the status quo.
Reed Smith’s Labor & Employment team will continue to monitor these changes and provide updates as they are available. If you have any questions in the meantime, Reed Smith’s attorneys are available to assist.