Employers in New Jersey should be aware that a recent executive order mandating safety protocols in the workplace amid the coronavirus (COVID-19) pandemic creates complaint mechanisms for whistleblowers, with the potential for significant penalties, including business closure.
New Jersey Governor Phil Murphy recently issued Executive Order 192 (EO 192), implementing workplace safety protocols covering all New Jersey workers amid COVID-19. Whereas previous executive orders imposed safety protocols on employers in specific industry sectors, EO 192 expands similar protections to all New Jersey workers. Of particular importance for employers is that EO 192 creates complaint mechanisms for whistleblowers and makes clear that the state Department of Health (NJDOH) and Department of Labor and Workforce Development (NJDOL) will investigate complaints, with the potential for significant penalties including closing the business.
The safety protocols in EO 192 are effective November 5, 2020 at 6:00 am and generally require the following:
- Six feet of distance between individuals at a worksite
- Requiring employees, customers, and visitors to wear face masks while at the worksite
- Hygiene, cleaning, and disinfecting protocols
- Daily health checks prior to each shift
- Separating and sending home symptomatic workers
- Notifying all employees of any known exposure to COVID-19 at the worksite
The safety protocols apply to any business that requires or permits its workforce, whether in part or as a whole, to be physically present at a worksite to perform work. Importantly, EO 192 does not authorize an expansion of in-person work. The portion of Executive Order 107 requiring all businesses to “accommodate their workforce, wherever practicable, for telework or work-from-home arrangements” remains in effect.
EO 192 tasks the NJDOH and NJDOL with developing a collaborative mechanism for collecting, investigating, and addressing worker complaints of noncompliance. The NJDOL will also develop and provide training designed to inform employees and employers of their rights and obligations vis-à-vis the safety protocols.
Safety Protocols for All New Jersey Employers
EO 192 requires every business, nonprofit, and governmental or educational entity that requires or permits its workforce, whether in part or as a whole, to be physically present at a worksite to abide by the following requirements.
Six Feet of Distance Between Individuals
- Individuals at the worksite must maintain at least six feet of distance from one another to the maximum extent possible.
- This includes, but is not limited to, during worksite meetings, orientations, and similar activities that would traditionally require individuals to be present in a single room or space and in close proximity, in common areas such as restrooms and breakrooms, and when individuals are entering and exiting the workplace.
- Where the nature of an employee’s work or the work area does not allow for six feet of distance to be maintained at all times, employers must:
- Ensure that each such employee wears a cloth or disposable face mask consistent with the face mask requirements described below; and
- Install physical barriers between workstations wherever possible.
Face Masks
- Employees, customers, visitors, and other individuals entering the worksite must wear cloth or disposable face masks while on the premises, in accordance with CDC recommendations.
- This does not apply to individuals under two years of age or where it is impracticable for an individual to wear a face mask, such as when the individual is eating or drinking or where a service being provided by the employer cannot be performed on an individual who is wearing a mask.
- Note: EO 192 requires “cloth or disposable face masks,” whereas previous New Jersey executive orders required only “cloth face coverings.” This suggests that gaiters, bandanas, and other non-mask cloth face coverings are no longer sufficient.
Masking Requirements Specific to Employees
- Employees may be permitted to remove face masks when they are situated at their workstations and are more than six feet from other individuals at the workplace, or when an individual is alone in a walled office.
- Employers must make face masks available, at their expense, to their employees.
- Employers may deny entry to the worksite to any employee who declines to wear a face mask.
- Consistent with state and federal law, if an employee cannot wear a mask because of a disability, an employer may be required to provide the employee with a reasonable accommodation unless doing so would be an undue hardship on the employer’s operations.
- An employer may require employees to produce medical documentation supporting claims that they are unable to wear a face mask because of a disability.
Masking Requirements Specific to Customers and Visitors
- Employers may deny entry to the worksite to any customer or visitor who declines to wear a face mask.
- Consistent with state and federal law, employers may be required to provide a customer or visitor who declines to wear a mask due to a disability services or goods via a reasonable accommodation, unless such accommodation would pose an undue hardship on the employer’s operations.
- Employers may not require a customer or visitor to produce medical documentation in the event that a customer or visitor declines to wear a face mask on the premises due to a disability that inhibits such usage.
Hygiene, Cleaning, and Disinfecting
Employers must do the following:
- Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to employees, customers, and visitors at no cost to those individuals.
- Ensure that employees practice regular hand hygiene, particularly when such employees are interacting with the public, and provide employees break time for repeated handwashing throughout the workday and access to adequate handwashing facilities.
- Routinely clean and disinfect all high-touch areas in accordance with NJDOH and Centers for Disease Control and Prevention (CDC) guidelines, particularly in spaces that are accessible to employees, customers, or other individuals.
- Ensure cleaning procedures following a known or potential exposure comply with CDC recommendations.
Daily Health Checks
- Prior to each shift, employers must conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, consistent with CDC guidance, including the latest CDC guidance regarding COVID-19 symptoms.
- Health checks 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 any other applicable laws, and consistent with any guidance from the Equal Employment Opportunity Commission (EEOC) and the New Jersey Division on Civil Rights.
Symptomatic Employees
- Immediately separate and send home employees who appear to have symptoms, as defined by the CDC, consistent with COVID-19 illness upon arrival at work or who become sick during the day.
- Employers subject to the New Jersey Earned Sick Leave Law, New Jersey Family Leave Act, and/or federal leave laws must continue to follow the requirements of the law, including by allowing individuals to use accrued leave in the manner permitted by law and employer policy, when requiring employees to leave the workplace in accordance with the provisions of EO 192.
Notification After Known Exposure
- Promptly notify all employees of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the ADA and any other applicable laws, and consistent with guidance from the EEOC.
- Note: EO 192 is ambiguous as to whether employers must notify only employees who were in close contact with an individual with COVID-19 or whether they must notify all employees at the worksite. We encourage a conservative reading of this requirement, meaning that employers should at least notify all employees who work in the same general area as the individual with COVID-19.
Exceptions
The safety protocols do not apply when they interfere with the discharge of the operational duties of first responders, emergency management personnel, emergency dispatchers, healthcare 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.
Impact on Previous Industry-Specific Requirements
Where consistent, the safety protocols outlined in EO 192 supplement any requirements outlined in any prior executive or administrative order. However, where an already existing requirement is inconsistent with the safety protocols outlined EO 192, the previously issued requirement continue to apply.
Enforcement by NJDOH and NJDOL
The NJDOL will establish a form on its website for workers to submit complaints of noncompliance. Working together, the NJDOL and NJDOH will create investigatory protocols, assist employers with compliance, and pursue enforcement actions where necessary.
Penalties for violating EO 192 may be imposed under N.J.S.A. App. A:9-49 and -50 (Violations for Disorderly Conduct), which authorizes fines up to $1,000 and/or imprisonment for a term not to exceed six months. In addition, an employer that fails to adhere to the protocols outlined in EO 192 may be subject to closure by the NJDOH pursuant to N.J.S.A. 26:13-8.
What Should New Jersey Employers Do Now?
Employers in New Jersey should take immediate steps to comply with these new workplace safety protocols. New Jersey businesses should review EO 192 in full and develop written protocols to ensure the workplace is in compliance. And savvy employers outside of New Jersey can consider implementing these measures now as more and more states look to enact similar COVID-19 standards.
Return to Work Resources
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
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