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Employment Law Notebook

Mask Up or Maskless? NJ Employees Face New Rules

New Jersey Governor Phil Murphey relaxed numerous COVID-19 restrictions in New Jersey in recent weeks due to the significant success in vaccine distribution and reduction in COVID-19 transmission and hospitalizations in the state. This changes the rules for employees and employers with regard to masks and social distancing at work as well as work from home rules. Here is a summary of the key requirements.

Changes to remote work

Businesses and non-profits no longer have to permit employees, “wherever practicable” to work remotely or to use “best efforts” to reduce the number of on-site staff to the minimal number necessary to ensure essential operations if employees cannot work remotely. (Executive Order 243) 

Masks Indoors

Mask rules are different for employers with work sites open to the public (selling goods or services to the public or holding events at their indoor spaces) and those closed to the public. The bottom line is that employees, customers and others in workplaces open to the public don’t have to wear masks unless the employer requires them to do so. Employees in workplaces closed to the public must wear masks unless their employer permits vaccinated employee to maskless, and it is up to the employer to decide whether customers to those sites must wear masks.   (See Executive Orders 242 and 243). 

Employers in workplaces open to the public:  Effective May 28, 2021, any individual in New Jersey is not required to wear a mask in most indoor public spaces in the state even if they can’t socially distance from others.  (Executive Order 242). While the Executive Order states that based on Centers for Disease Control (“CDC”) guidance, individuals who are not vaccinated should continue to wear masks in indoor public spaces, it does not state this as a mandatory requirement. Indoor public spaces do not include childcare centers and facilities, youth summer camps, preschools, elementary,  and secondary schools (which are still governed by Executive Orders 149, 175, 237 and other Department of Health requirements) or health care, long-term care, and correctional facilities, homeless shelters, planes, buses, trains and other forms of public transportation, and transportation hubs.

However, the rules may be different at work. Employers and entities overseeing public spaces are allowed to put in place stricter procedures regarding mask requirements inside such sites for employees, customers, guests and others where otherwise consistent with state and federal law.  They are not permitted to restrict or retaliate against anyone who wants to continue to wear a mask. 

Employers in workplaces not open to the public:  Effective June 4, 2021, all individuals in these places must continue to wear masks except:

Rules for Employees

Employers at such sites can allow fully vaccinated employees to go maskless and forego social distancing if such employees provide proof that they have been fully vaccinated  in accordance with state and federal law.  The EEOC has issued guidance that it is permissible for employers to ask employees for documentation showing they were vaccinated without violating the Americans with Disabilities Act as long as they do not ask other medical questions. The State is using the CDC’s standard for fully vaccinated, which is 2 weeks after an individual receives the second shot of the Moderna or Pfizer COVID-19 vaccine or two weeks after an individual receives the Johnson & Johnson COVID-19 vaccine(See my prior article  for more information on vaccines in the workplace)..

If employees are not fully vaccinated, or an employer cannot determine an employee’s vaccination status, employers must require such employees to wear masks and practice social distancing of at least six feet to the maximum extent possible subject to exceptions in Executive Order 192.

If an employer wants to require all employers to continue to wear masks and social distance regardless of vaccination status, they can do so consistent with federal and state law. Employers are not permitted to restrict or retaliate against anyone who wants to continue to wear a mask.

Rules for Customers

Employers in workplaces closed to the public have the choice of whether or not to require customers, visitors and other nonemployees authorized to enter the workplace to wear a mask and follow social distancing, regardless of the individual’s vaccine status.  If the employer requires mask for these individuals it must follow reasonable accommodation requirements for anyone who can’t wear one due to a disability, individuals under two years old or when individuals are eating or drinking.  If the employer does not have a mask  requirement for these individuals, employers are not permitted to restrict or retaliate against anyone who wants to continue to wear a mask.

Masks Outdoors

Since May 17, individuals have not had to wear masks in outdoor public spaces but employers and entities overseeing these sites are permitted to impose stricter mask-wearing requirements for employees, customers, guests and others when outdoors. (Executive Order 241).  Outdoor public spaces do not include childcare centers and facilities, youth summer camps, preschools, elementary,  and secondary schools (which are still governed by Executive Orders 149, 175, 237 and other Department of Health requirements), health care or long-term care facilities.

Employer Still Must Follow the Other Health and Safety Rules Imposed in October in Executive Order 192 

 

Regardless of the relaxation of some mask and social distancing requirements, employers still need to follow other health and safety rules aimed at preventing the spread of COVID-19 mandated under Executive Order 192. This includes conducting daily health checks of employees, taking steps to isolate and quarantine employees with COVID-19 symptoms or a positive COVID-19 test, and worksite hygiene, sanitization disinfection procedures. See my prior article on these requirements for more information.