NJ Governor Orders Non-Essential Brick-and-Mortar Retail Closure, Remote Work Implementation

New Jersey Governor Phil Murphy on March 21 signed Executive Orders 107 and 108, which took effect at 9:00 pm the same day. Executive Order 107 mandates that all residents remain home unless performing certain delineated activities; orders the closure of brick-and-mortar retail locations of all non-essential businesses; and instructs all businesses and nonprofits—even those deemed essential—to implement telework or work-from-home options for employees, to the extent practicable. For businesses deemed non-essential, employers may maintain a minimal number of onsite staff to ensure that essential operations can continue. Executive Order 108 invalidates any county or municipal restrictions that conflict with Executive Order 107.

Executive Order 107

New Jersey Residents Must Generally Stay Home

Executive Order 107 (EO 107) supersedes Executive Order 104, which Governor Murphy signed on March 16 (which, among other things, instituted a curfew from 8:00 pm-5:00 am). EO 107 instructs all New Jersey residents to stay at home unless they are doing certain delineated tasks, which include “[r]eporting to or performing their job” if they work at essential retail premises or are among the minimal number of staff necessary to ensure that non-essential retail operations continue. When in public, all individuals must practice social distancing and should only use public transportation if they have no feasible choice. In addition, EO 107 cancels all gatherings such as parties, celebrations, or other social events.

Brick-and-Mortar Premises of All Non-Essential Retail Businesses Must Close

While non-essential retail premises must close to the public, as stated above, employees may report to work at such locations (or back-office locations) if they are among the staff deemed necessary to ensure that essential operations can continue.  

Essential retail businesses may remain open to the public, but must abide by social distancing practices. They also must, wherever practicable, provide pickup services outside or adjacent to their stores for goods ordered in advance online or by phone. Delivery services are also permitted. The following are essential retail businesses:

• Grocery stores, farmer’s markets and farms that sell directly to customers, and other food stores
• Pharmacies and medical marijuana dispensaries
• Medical supply stores
• Retail functions of gas stations
• Convenience stores
• Ancillary stores within healthcare facilities
• Hardware and home improvement stores
• Retail functions of banks and other financial institutions
• Retail functions of laundromats and dry-cleaning services
• Stores that principally sell supplies for children under five
• Pet stores
• Liquor stores
• Car dealerships, but only to provide auto maintenance and repair services, and auto mechanics
• Retail functions of printing and office supply shops
• Retail functions of mail and delivery stores

In addition, restaurants, cafeterias, dining establishments, food courts, and bars may operate their normal business hours, but are limited to offering only food delivery and/or take-out services in accordance with any liquor license the establishment may have.

Medical Facilities May Remain Open

The guidance issued by the state clarifies that medical facilities, defined as facilities where a sick or injured person is given care or treatment, may remain open. These include doctor offices, hospitals, dentist offices, long-term care facilities, and other medical offices.

Recreational and Entertainment Businesses Must Close

All recreational and entertainment businesses, including the following, must close to the public:

• Casino gaming floors and casino concert and entertainment venues
• Racetracks
• Gyms and fitness centers and classes
• Entertainment centers, including movie theaters, performing arts centers, concert venues, and nightclubs
• Indoor portions of retail shopping malls, excepting restaurants and other essential stores that have external entrances
• All indoor and outdoor places of amusement
• Facilities where personal care services are performed such as cosmetology shops, barber shops, beauty salons, hair braiding shops, nail salons, electrology facilities, spas, massage parlors, tanning salons, tattoo parlors, and public and private social clubs (health facilities that provide medically necessary or therapeutic services are exempted)
• Libraries

All Businesses and Nonprofits Must Implement Telework or Work-From-Home

All businesses and nonprofits—including those deemed essential—must implement, wherever practicable, telework or work-from-home arrangements. To the extent employees cannot perform their functions via telework or work-from-home arrangements, best efforts must be made to reduce onsite staff to the minimal number necessary to ensure essential operations can continue. Examples of such employees who may work onsite (when they cannot perform their jobs at home) include the following:

• Law enforcement officers, firefighters, and other first responders
• Cashiers or store clerks
• Construction workers
• Utility workers
• Repair workers
• Warehouse workers
• Lab researchers
• IT maintenance workers
• Janitorial and custodial staff
• Certain administrative staff

Individuals and Businesses Must Practice Social Distancing

Individuals must practice social distancing when in public, and any essential retail business permitted to remain open to the public must, to the extent practicable, abide by social distancing practices. EO 107 cites the Centers for Disease Control’s definition of social distancing: “Remaining out of congregate settings, avoiding mass gatherings, and maintaining distance (approximately 6 feet or 2 meters) from others when possible.” Consistent with this definition, EO 107 instructs individuals to stay six feet apart when in public and to use sanitizing products frequently. Essential retail businesses permitted to remain open must use all reasonable efforts to keep customers six feet apart and frequently use sanitizing products on common surfaces.

Executive Order 108

Several New Jersey counties and municipalities have passed their own COVID-19-related restrictions. Executive Order 108 provides that any county or municipal restriction that in any way will or might conflict with any of the provisions of EO 107, or which will or might in any way interfere with or impede its achievement, is invalidated.

What Should New Jersey Employers Do Now?

As EO 107 is unprecedented in New Jersey history, we are in largely unchartered waters, and there is bound to be ambiguity that will be challenging to navigate. The following are certain actions that employers can take immediately:

• If you are a retailer, determine whether you are essential under EO 107. If you are, you can operate subject to social distancing requirements and with the minimal number of staff necessary.
• Reinforce good hygiene tips with employees and, if applicable, patrons/customers. Ensure that workspaces are regularly cleaned and disinfected.
• If you are a non-essential retailer or other business, you should scrutinize your workforce to determine which employees cannot work remotely. For those employees who must come to the office to ensure that essential operations can continue, stagger schedules, including break times, to the extent possible to ensure appropriate social distancing.
• To the extent possible, evaluate the acquisition of laptops or equip employees with other remote access tools for their home computer/telephone equipment to work from home before concluding that it is not practicable to do so.
• The guidance issued concurrently with the two executive orders encourages an employer to provide essential employees with a letter explaining why it is necessary for them to report to work.
• If an employee has COVID-19 or flu-like symptoms (fever, cough, or shortness of breath), send the employee home immediately and instruct the employee to contact his or her healthcare provider and to then call human resources.

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Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis’s lawyers:

Princeton
August W. Heckman III
Terry D. Johnson
Thomas A. Linthorst
Sean P. Lynch
Joseph A. Nuccio
Richard G. Rosenblatt
Michelle Seldin Silverman
James P. Walsh, Jr.

Philadelphia
Emily Reineberg