Face Coverings and Gloves On: New Jersey Orders New Worksite Social Distancing and Infection Control Measures

As New Jersey continues to battle the spread of coronavirus (COVID-19), Governor Phil Murphy ordered essential businesses in the state to adopt several measures including mandatory face coverings at worksites, occupancy limits for stores, and frequent handwashing breaks for employees. Employers should pay close attention to these comprehensive and far-reaching—and sometimes confusing—orders that impose affirmative duties and could raise a host of reasonable-accommodations issues.

New Jersey Governor Phil Murphy signed Executive Order No. 122 (EO 122) on April 8 mandating essential businesses implement a series of social distancing and infection control measures in response to the coronavirus (COVID-19) pandemic. All essential retail businesses, warehousing and manufacturing businesses, and businesses performing essential construction projects, must now require cloth face coverings and gloves at worksites, and send home workers exhibiting symptoms consistent with COVID-19.

Additionally, essential retail operations are required to limit occupancy to 50% of store capacity and provide workers break time for handwashing. Warehousing, manufacturing, and essential construction businesses must prohibit nonessential visitors from entering the worksite and, where practicable, stagger lunch breaks and work schedules. EO 122 sets forth a series of additional mitigation measures, all of which took effect at 8:00 pm on April 10. The order’s measures are aimed at, as the governor declared, “furthering our aggressive efforts to enforce social distancing and limiting our public interactions to only the most essential in order to reduce the spread of COVID-19.”

Cross-Industry Requirements[1]

EO 122 requires all essential retail businesses, warehousing and manufacturing businesses, and businesses performing essential construction projects to adopt policies that include the following mitigation measures:

• Require workers, customers, and other visitors (over the age of two) to wear cloth face coverings while on the premises, unless doing so would inhibit that individual’s health. Businesses must provide the face coverings at their own expense. Notably, EO 122 requires “cloth face coverings,” not surgical-grade masks. As referenced by the order, the Centers for Disease Control and Prevention (CDC) advises that cloth face coverings fit snugly against the side of the face, be secured with ties or ear loops, include multiple layers of fabric, allow for breathing without restriction, and be washable. If a customer or other visitor at a worksite refuses to wear a face covering for nonmedical reasons, the business must decline entry to that individual unless, in the case of essential retailers, the business is providing medication, medical supplies, or food, in which case the business policy should provide alternate methods of pickup and/or delivery of such goods;
• Require workers to wear gloves, which businesses likewise must provide at their own expense. (Retail workers need only wear gloves when in contact with customers or goods);
• Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to workers, customers, and other visitors at the worksite;
• Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
• Immediately separate and send home workers who appear to have symptoms consistent with COVID-19 upon arrival at work or who become sick during the day. Notably, the order authorizes employers to send home not only workers who have tested positive for COVID-19 but also those who “appear to have symptoms” of the virus;
• Promptly notify workers of any known exposure to COVID-19 at the worksite. Employers must deliver such notification in a manner “consistent with the confidentiality requirements of the Americans with Disabilities Act and any other applicable laws”;
• Clean and disinfect the worksite in accordance with guidelines promulgated by the CDC when a worker at the site is diagnosed with COVID-19; and
• Follow guidelines and directives issued by the New Jersey Department of Health, the CDC, and the Occupational Safety and Health Administration for maintaining a clean, safe, and healthy work environment.

Essential Retail

In addition to cross-industry requirements, EO 122 sets forth a series of industry-specific measures aimed at social distancing and infection control. Essential retail businesses must adopt the following (additional) practices:

• Limit occupancy at 50% of the stated maximum store capacity, if applicable, at one time;
• Provide employees break time for repeated handwashing throughout the workday. The order does not enumerate a specific time duration or frequency for the breaks, but does require that they be sufficient for “repeated” handwashing “throughout” the day;
• Require frequent sanitization of high-touch areas such as restrooms, credit card machines, keypads, counters, and shopping carts;
• Place conspicuous signage at entrances and throughout the store, if applicable, alerting staff and customers to the required six feet of physical distance; and,
• Demarcate six feet of spacing in checkout lines to demonstrate appropriate spacing for social distancing.

Further, whenever feasible, retailers must:

• Install a physical barrier (e.g., a “shield guard”) between customers and cashiers or baggers, or otherwise ensure six feet of distance between those individuals, except at the moment of payment or exchange of goods;
• Arrange for contactless pay options, pickup, or delivery of goods;
• Establish hours of operation that permit access solely to high-risk individuals, as defined by the CDC.

Warehousing, Manufacturing, and Essential Construction

EO 122 also imposes mitigation requirements specific to warehousing, manufacturing, and essential construction businesses. Regarding construction, EO 122 orders cessation of all nonessential construction projects but permits continuance of “essential construction projects,” which it defines as construction relating to, among other things, healthcare services; transportation (e.g., roads, bridges, mass transit facilities); utilities; and law enforcement. Significant to businesses, “essential construction” also includes projects involving facilities for the manufacturing, distribution, storage, or servicing of goods or products that are sold by online retail businesses or essential retail businesses, as well as construction projects involving data centers or facilities that are critical to a business’s ability to function.

Companies engaged in essential construction, warehousing, and manufacturing must:

• Prohibit nonessential visitors from entering the worksite;
• Limit worksite meetings, inductions, and workgroups to groups of fewer than 10 individuals;
• Restrict the number of individuals who can access common areas, such as restrooms and breakrooms, concurrently;
• Limit sharing of tools, equipment, and machinery; and
• Require frequent sanitization of high-touch areas like restrooms, breakrooms, equipment, and machinery.

Further, wherever practicable, construction, warehousing, and manufacturing businesses must:

• Require individuals to maintain six feet or more of distance between them;
• Stagger work start and stop times to limit the number of individuals entering and leaving the worksite concurrently; and
• Stagger lunch breaks and work times to enable operations to safely continue while utilizing the least number of individuals possible at the site.

Building Owners

EO 122 also regulates certain building owners. Specifically, where a business is authorized to maintain in-person operations, owners of buildings used for commercial, industrial, or other enterprises – including facilities for warehousing, manufacturing, and commercial offices – must implement the following cleaning protocols in areas where operations are conducted:

• Clean and disinfect high-touch areas routinely in accordance with CDC guidelines, particularly in spaces that are accessible to staff, customers, tenants, or other individuals, and ensure that cleaning procedures following a known or potential exposure in a facility are in compliance with CDC recommendations;
• Otherwise maintain cleaning procedures in all other areas of the facility; and
• Ensure that the facility has a sufficient number of workers to perform the above protocols effectively and in a manner that ensures the safety of occupants, visitors, and workers.

Penalties and Exceptions

Violators of EO 122 may be deemed disorderly persons and subject to imprisonment for a term of up to six months and/or a fine not to exceed $1,000.[2] EO 122 also prohibits aiding or abetting another in violation of the order.[3] Importantly, EO 122 stipulates that penalties may be imposed under “other statutes.” Thus, liability (whether civil or criminal) is not per se limited to N.J.S.A. App.A:9-49 and -50; businesses could face penalties under “other statutes,” the range of which EO 122 does not limit.

The state director of emergency management, who is the superintendent of State Police, has discretion to “make additions, amendments, clarifications, exceptions, and exclusions to the terms of this Order.” EO 122, however, does not outline any specific process or procedure for seeking an exception or exclusion.

What EO 122 Means for New Jersey Employers

It is critical for employers (and building owners) to pay close attention to the new, “aggressive” social distancing and infection control requirements imposed by EO 122. The order’s directives are comprehensive and far-reaching, and they impart affirmative duties on employers. Enforcing, for example, a 50% cap on store occupancy and incorporating “repeated” handwashing breaks for all workers, while ensuring ample supplies of cloth face coverings, gloves, and sanitation materials for workers and customers, among other mitigation efforts required under the order, may pose challenges to essential retailers. Likewise, warehousing, manufacturing, and construction businesses must now look to stagger work schedules and lunch breaks as well as limit worksite meetings and the sharing of tools and equipment.

Equally important, employers must be aware that questions remain regarding interpretation and application of EO 122. In particular, the law on its face does not squarely address whether employers can send home workers who decline to wear a face covering for medical reasons and, if an employer does so, must it be with pay? We anticipate various reasonable-accommodations issues to arise surrounding the use of face coverings. For example, employees could suggest some type of disability restriction or religious objection to wearing a face covering. While the governor’s mandate now should make wearing face coverings a valid qualification standard that an employer might not have to reasonably accommodate, all such requests and objections should be carefully considered. Similarly, employees who are hearing impaired and rely on lip reading may require an accommodation that will need to be considered, whether by way of the provision of providing clear face coverings to supervisors (if available) or the ability to write out communications.

Moreover, while EO 122 bars companies from requiring an “individual” who refuses to wear a face covering for health reasons to produce supporting medical documentation, the order does not address whether employers may ask for medical proof for other purposes, such as to determine whether to permit that “individual” to use paid time off (PTO) for any absence related to declining to wear a face covering, an option which employers may wish to consider.

Questions also remain as to whether the order’s face covering requirement for essential retail workers and customers (under Section 1(k)) differs from the face covering requirement applicable to workers and visitors at manufacturing, warehousing, and essential construction worksites (under Section 3(g)). Section 3(g) modifies the requirement to wear face coverings with the phrase “in accordance with the CDC recommendations,” while such reference to the CDC is omitted in Section 1(k), which applies to essential retailers. CDC recommendations are voluntary. The absence of reference to the CDC in Section 1(k) may be intended to signal that the face coverings requirement is different for essential retailers.

Notwithstanding the uncertainties underlying some of the order’s mandates, it is clear that employers will need to carefully review and analyze their operating procedures, internal policies, and staffing, resource, and financial capabilities in view of EO 122. Companies may also wish to draft protocols to memorialize the new policies ushered in by EO 122. Additionally, where a company deems it impracticable to implement any of the recommended measures set forth in EO 122, it should consider internally documenting its rationale. And, with respect to workers who refuse to wear face coverings due to a stated medical condition, employers should engage in an interactive dialogue to inquire how the worker’s health would be inhibited (without asking for any underlying diagnosis) and determine whether that can be addressed.

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Contacts

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

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

[1] On April 13, 2020, Governor Murphy also signed Executive Order No. 125, which adopts similar, if not even stricter, face covering regulations for transit operators and restaurants providing takeout service.

[2] N.J.S.A. App.A:9-49.

[3] N.J.S.A. App.A:9-50.