Seyfarth Synopsis: As concerns about community spread of the 2019 Novel Coronavirus disease ("COVID-19") mount, New Jersey has taken measures to ensure social distancing and help "flatten the curve" and slow the spread of COVID-19.
On March 16, 2020, Governor Murphy signed Executive Order 104 which limits gatherings of persons in the State of New Jersey to 50 persons or fewer, with exceptions for airports, bus and train stations, medical facilities, office environments, factories, assemblages for the purpose of industrial or manufacturing work, construction sites, mass transit, or for the purpose of obtaining groceries or consumer goods. The Order also provides for the mandatory closure of all schools (as of March 18) and other specific types of facilities where significant numbers of individuals gather in close proximity and where individuals may come into contact with common surfaces, including casino gaming floors, racetracks, gyms and fitness centers and classes, and entertainment centers (as of March 16).
Under the Executive Order, other non-essential retail, recreational and entertainment businesses must cease daily operations from 8:00 p.m. until 5:00 a.m. From 5:00 a.m. until 8:00 p.m., these businesses may remain open if they limit their occupancy to no more than 50 persons and adhere to social distancing guidelines. Examples of essential businesses excluded from this directive include: grocery/food stores, pharmacies, medical supply stores, gas stations, healthcare facilities and ancillary stores within healthcare facilities. In addition, all restaurants, dining establishments and food courts, with or without a liquor license, and all bars and other holders of a liquor license with retail consumption privileges are permitted to operate their normal business hours, but are limited to offering only food delivery and/or take-out services.
Thereafter, on March 17, the State Director of Emergency Management issued an Administrative Order adding to the list of facilities subject to mandatory closure. These facilities include all indoor common area portions of retail shopping malls and all places of public amusement, whether indoors or outdoors.
Executive Order 104
Last month, Governor Murphy created the State's Coronavirus Task Force to coordinate the State's efforts to appropriately prepare for and respond to the public health hazard posed by COVID-19. On March 9, the Governor declared both a Public Health Emergency and State of Emergency; and further declared that, due to the State of Emergency, no municipality, county, or any agency or political subdivision of the State could enact or enforce any order, rule, regulation, ordinance, or resolution which will or might in any way conflict with any of the provisions of the Governor's Executive Orders, or which will in any way interfere with or impede their achievement.
The Governor has now entered Executive Order 104 as part of the State's mitigation strategy to combat COVID-19 and reduce the rate of community spread. Based on the increase in positive cases of COVID-19 in New Jersey, spread across numerous counties, as well as CDC recommendations regarding large gatherings and "social distancing," the Order is aimed at providing restrictions for locations where significant numbers of individuals gather in close proximity and where individuals may come into contact with common surfaces.
The key provisions in the Executive Order that will impact employers include:
1. Gatherings of persons in the State of New Jersey are limited to 50 persons or fewer, excluding normal operations at airports, bus and train stations, medical facilities, office environments, factories, assemblages for the purpose of industrial or manufacturing work, construction sites, mass transit, or the purpose of groceries or consumer goods.
2. Public, private, and parochial preschool program premises, and elementary and secondary schools, including charter and renaissance schools, are closed to students as of March 18.
3. Institutions of higher education must cease in-person instruction as of March 18. Institutions may apply for a waiver, however, to allow in-person instruction where there is a "compelling rationale."
4. Schools may be permitted (following appropriate approval) to remain open on a limited basis for the provision of food or other essential, non-educational services, or for educational or child care services if needed in emergency situations.
5. The following facilities are ordered closed to members of the public, effective 8:00 p.m. on March 16:
- Casino gaming floors, including retail sports wagering lounges, and casino concert and entertainment venues. Online and mobile sports and casino gaming services may continue to be offered.
- Racetracks, including stabling facilities and retail sports wagering lounges. Mobile sports wagering services may continue to be offered.
- Gyms and fitness centers and classes.
- Entertainment centers, including but not limited to, movie theaters, performing arts centers, other concert venues, and nightclubs.
The State Director of Emergency Management has also been given the discretion to make additions, amendments, clarifications, exceptions, and exclusions to this list. We note that the Director has exercised that authority in issuing the Administrative Order referenced below.
6. Other "non-essential" retail, recreational and entertainment businesses must cease daily operations from 8:00 p.m. until 5:00 a.m. From 5:00 a.m. until 8:00 p.m., these businesses may remain open if they limit their occupancy to no more than 50 persons and adhere to social distancing guidelines (i.e., maintaining a distance of approximately 6 feet from others). The Executive Order provides examples of essential businesses excluded from this directive, including: grocery/food stores, pharmacies, medical supply stores, gas stations, healthcare facilities and ancillary stores within healthcare facilities. Again, the State Director of Emergency Management has the authority to make changes to this list of essential businesses and to the timeline applicable to operating hours.
7. All restaurants, dining establishments and food courts, with or without a liquor license, and all bars and other holders of a liquor license with retail consumption privileges are permitted to operate their normal business hours, but are limited to offering only food delivery and/or take-out services.
The Executive Order states that penalties for violations of this Executive Order may be imposed under, among other statutes, N.J.S.A. App. A:9-49 (violations as disorderly conduct) and -50 (aiding or abetting violation).
The Order further reiterates that no municipality, county or other agency or political subdivision of the State can enact or enforce any rule (or the like) that would conflict with any of the provisions of the Executive Order, or would interfere with or impede its achievement.
The Executive Order is effective immediately and will remain in effect until revoked or modified by the Governor. All school and facility closures are also to remain in effect for as long as the Executive Order is in place.
Administrative Order on Mandatory Facility Closures
On March 17, the State Director of Emergency Management issued an Administrative Order on Mandatory Facility Closures. The Order added the following facilities to the list of facilities closed to members of the public:
- All indoor common area portions of retail shopping malls. Restaurants and other stores located within shopping malls that have their own external entrances open to the public, separate from the general mall entrance, may remain open pursuant to the terms and directives of Executive Order 104 for operating hours and for takeout or food delivery services. All entrances and exits to the indoor common area portions of retail shopping malls must remain closed.
- All places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement rides, carnivals, amusement parks, aquariums, zoos, arcades, fairs, children's play centers, funplexes, theme parks, bowling alleys, family and children's attractions.
The Administrative Order does not apply to public parks and open recreation areas.
The above facilities are ordered closed to members of the public effective at 8:00 p.m. on March 17, and must remain closed for as long as Executive Order 104 remains in effect.
Other Local Orders
Other county and local governments have issued orders providing additional restrictions on individuals and businesses within those localities. For example, on March 16, the Bergen County Executive issued an Executive Order requiring the closure of all malls, shopping centers, offices, construction and business activity of any type or nature, as well as all health clubs, gyms, dance class facilities, yoga class facilities and all other similar recreational facilities, among other restrictions and closures, with some exceptions. The Order also prohibits groups of more than four people, other than family members, from assembling in public at any time; and imposes a curfew within the County between the hours of 8:00 p.m. and 7:00 a.m. for all public outdoor activities. This Bergen County initiative was set to go into effect on March 17, but was delayed until no earlier than Saturday morning, March 21. Also on March 16, the Wayne Township Mayor issued a Proclamation of Local Emergency which, among other things, ordered the closure of the Township's major mall, shopping center and other adjacent stores as of 8:00 p.m. on March 16. Various municipalities within the State have enacted similar restrictions.
Given the above-referenced restriction in Governor Murphy's Executive Orders that county and local governments may not enact or enforce rules that would conflict or interfere with the Executive Orders' provisions, it is not certain whether these county and local laws will be enforceable. Governor Murphy did state in a press conference, however, that in certain circumstances it may make sense for localities to take actions relating to their unique concerns. The Governor further noted that the State is reviewing the actions of county and local governments to ensure that those actions are fully aligned with Statewide guidance. According to the Governor, where necessary, the State will support local actions, but where also necessary, the State will override them. The Governor also requested that going forward, county and local officials coordinate closely with the State prior to making any local directive.
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