Yesterday, New Jersey Governor Phil Murphy issued Executive Order 192 ("EO 192"), creating additional COVID-19 mitigation protocols for New Jersey employers that will be effective on November 5, 2020 at 6:00 am. These new requirements are largely based on existing the United States Centers for Disease Control ("CDC") guidance for employers, although there are some new measures contained in EO 192 discussed below. Importantly, the mitigation measures contained in EO 192 are mandatory, and non-compliance carries potentially significant consequences.
EO 192 applies to all New Jersey "employers," defined as "every business, non-profit, and governmental or educational entity." Here is a summary of the Order's key provisions:
- Employees must stand or be situated at least six feet apart; where this is not possible, employers must install barriers between workstations whenever possible;
- Employers must provide masks to employees, and employees/customers must wear masks (with exceptions for when employees are situated at workstations six feet apart or in walled offices, and where an employee should not wear a mask as a form of accommodation under the Americans with Disabilities Act ("ADA") and/or New Jersey Law Against Discrimination ("LAD");
- Employers must provide sanitizer with 60% alcohol and sanitizing wipes approved by United States Environmental Protection Agency at no cost to customers and employees;
- Employers must provide breaks throughout the workday for adequate handwashing;
- If employers require employees to wear gloves, the employer must supply the gloves;
- Employers must take steps to sanitize high-touch areas;
- Prior to each shift, employers must conduct confidential health checks of employees "such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires" consistent with CDC, United States Equal Employment Opportunity Commission ("EEOC") and New Jersey Division on Civil Rights guidance;
- Employers must immediately send home symptomatic employees;
- Employers must promptly notify employees of any known exposure to COVID-19, while maintaining confidentiality requirements of the ADA, and consistent with EEOC guidance;
- The New Jersey Department of Labor and Workforce Development ("NJDOL") must create and publicize an intake process for employee complaints;
- Allows the New Jersey Department of Health to shut down businesses who fail to comply with the Order; and
- In addition to a potential business shut down, violations of EO 192 may result in imprisonment not to exceed six months or a fine of $1,000.
As noted above, many of the mitigation measures set forth in EO 192 mirror current CDC and OSHA guidance for employers. Significantly, however, EO 192 adds a new requirement that employers must give employees breaks throughout the day to wash their hands without restrictions. Although not specified in the Order, these breaks would presumably be in addition to any other breaks provided by existing company policies. These hand-washing breaks would also likely be compensable pursuant to applicable wage and hour regulations. Although the health benefit of this requirement appears obvious, its implementation has the potential for abuse – especially in the retail space – because it provides workers with an excuse for not being at their workstations. Looking forward, employers should not only modify their existing policies to provide for frequent mandatory hand-washing breaks, but should also consider how the company will demonstrate compliance if audited. For example, some employers might use a written handwashing schedule, rotating employees each hour.
Another factor distinguishing EO 192 from federal guidance is that the Order directs the NJDOL to create an intake process for complaints, and to generate public awareness of the mitigation requirements that businesses must now undertake. Previously, employees may not have known who to call if a co-worker or customer refused to wear a mask or observe social distancing measures. Options could have included calling the police, complaining to a manager or other response personnel designated by the company, or possibly calling the New Jersey Department of Health. Now, employees will be directed to call the NJDOL, and the agency will be actively soliciting complaints. This poses several new risks for employers: 1) companies may be forced to expend resources responding to NJDOL investigations into non-compliance; 2) whistleblowing activity to the NJDOL could potentially increase employee retaliation claims (although the Order does not create a private cause of action); and, most importantly, 3) the Department of Health may shut down a business location if the NJDOL finds non-compliance with the Order. An unexpected store closure during the holiday season would be bad enough, but it is also likely to be accompanied by an NJDOL press release leading to bad publicity.
New Jersey employers should revisit their COVID-19 control and reopening policies, and make necessary modifications to comply with EO 192.
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