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Employment Law Notebook

NJ GOVERNOR ISSUES EXECUTIVE ORDER REQUIRING EMPLOYERS TO FOLLOW SPECIFIC HEALTH AND SAFETY PROTOCOLS DUE TO COVID-19

Due to the growing number of new COVID-19 cases emerging across the state of New Jersey, New Jersey Governor Phil Murphy issued an executive order yesterday imposing mandatory health and safety protocols on businesses, non-profits, educational entities and governmental entities that have any employees performing work at an employer’s worksite.  The mandatory requirements, which go into effect at 6:00 am on November 5, affect nearly all employers in the state and are designed to protect employees, customers and all others who come into physical contact with the employer’s operations. 

Executive Order 192 requires employers to implement specific requirements for mask wearing for employees and customers, social distancing, daily health checks of employees, procedures when employees have symptoms of COVID-19 and test positive for the virus, and employee and worksite cleaning, sanitization and disinfection.   Notably, it empowers the state Department of Health (“DOH”) to shut down an employer that fails to implement these health and safety protocols, provides for the establishment of a complaint and investigation procedure for noncompliance, and the imposition of $1000 fines and jail time up to six months for violators.

Every employer in New Jersey (with limited exceptions) that requires or permits its workforce to be physically present at the worksite must establish at a minimum the following procedures to protect employees, customers, and others who come into physical contact with the employer’s operations.  All employers in the state should review and update their COVID-19 procedures and protocols to ensure that they comply with the standards outlined in this Executive Order.   Here are the requirements:

MASKS IN THE WORKPLACE

Employers must provide and pay for face masks for employees.

All employees, customers, and others entering the worksite must wear a cloth or disposable face mask while on the premises.  Employees are permitted to wear a surgical-grade mask or other more protective face mask if they desire to do so.  Any employer subject to additional requirements to provide employees with more protective equipment than this due to the nature of the work involved can follow those requirements.

Employers can prohibit employees who refuse to wear a mask from entering the worksite, except when prohibited from doing so by another law. If, for example, an employee can’t wear a mask because of a disability, the employer could be required under the New Jersey Law Against Discrimination (“NJLAD”) or Americans with Disabilities Act (“ADA”) to reasonably accommodate the employee in another way so that the employee can work unless doing so would impose an undue hardship on the employer’s operations.  Employers may require employees who are unable to wear a mask because of a disability to produce medical documentation supporting that inability.

Employers can allow employees to remove face masks in these circumstances: when employees are at a workstation that is more than six feet from others, when employees are alone in a walled office, or when it is impractical to do so, such as when eating or drinking.

Employers cannot require customers and other visitors to wear a face mask while entering or on the premises in these circumstances: if the individual is receiving a service from the employer that cannot be performed while the individual is wearing a mask, or an individual is eating or drinking, or an individual is under two years of age.

Employers can prohibit customers and other visitors who refuse to wear a mask from entering the worksite, except when prohibited from doing so by another law. If, for example, a customer or visitor can’t wear a mask because of a disability, the employer cannot require the individual to verify their condition unless otherwise required by another law.  Additionally, the employer may be required under the NJLAD or ADA to reasonably accommodate the customer or visitor in another way unless doing so would impose an undue hardship on the employer’s operations.

SOCIAL DISTANCING/BARRIERS

Employers must require all employees, customers, and others at the worksite to be at least six feet apart from one another to the maximum extent possible when entering and leaving the workplace, during meetings and other activities taking place in a single room or space and when in common areas such as restrooms and breakrooms.  If employees cannot be six feet apart from others due to the nature of an employee’s work or the limitations of the work area, employers must ensure that each such employees wear a mask, and shall install physical barriers between workstations whenever possible.

SCREENING EMPLOYEES FOR HEALTH SYMPTOMS/ACTIONS TO TAKE WHEN EMPLOYEES ARE SYMPTOMATIC OR TEST POSITIVE FOR COVID-19.

Employers must conduct daily health checks of each employee before each employee starts work: This could include for example, temperature checks, visual symptom checks, requiring employees to fill out a self-assessment checklist and/or health questionnaire.  When conducting health screenings, employers must comply with Centers for Disease Control (“CDC” guidance on COVID-19 symptoms and guidance from the Equal Employment Opportunity Commission (“EEOC”), and comply with the confidentiality requirements of the ADA, NJLAD and other laws.

Employers must immediately separate employees who appear to have COVID-19 symptoms from others and send them home and comply with any applicable paid time off requirements under the New Jersey Earned Sick Leave Law, the federal Family First Coronavirus Response Act and the employer’s PTO policy.

If an employee at work gets COVID-19, employers must do the following:

Notify all employees known to have been exposed to the employee consistent with confidentiality requirements of the ADA and other laws, and EEOC Guidance; and

Clean and disinfect the worksite based on CDC guidelines; and

Follow all directives and guidelines set by the DOH, the CDC and the Occupational Safety and Health Administration (“OSHA”) for maintaining a clean, safe and healthy work environment.

EMPLOYEE AND WORKSITE HYGIENE, SANITIZATION AND DISINFECTION

Employers must provide employees, customers and visitors with sanitization materials, such as hand sanitizer and sanitizing wipes at no cost.

Hand washing: Employers must provide access to adequate hand washing facilities, ensure employees regularly wash their hands and provide breaks throughout the day so they can wash their hands.  If an employer also requires employees to wear gloves, the employer must provide them to employees.

Employers must clean/disinfect high-touch areas, such as restrooms, handrails, door knobs, and employee equipment in accordance with DOH and CDC guidelines.

COMPLAINTS AND VIOLATIONS

The state Department of Labor will be rolling out a procedure for employee to report employers who fail to comply with these health and safety requirements and to investigate such complaints. While the Executive Order does not create a new cause of action for an employee if an employer violates Executive Order 192, it is certainly plausible that employees could seek relief under the state whistleblower law if they are subject to retaliation for reporting a complaint about or refusing to participate in an employer’s noncompliance with Executive Order 192, and under the NJLAD and ADA if health screenings and reasonable accommodation obligations are not handled correctly.  The Department of Health plans to roll out employment notices informing employees of their rights and employers of their obligations as well as and compliance and safety training focused on these new protocols.

Given the various legal requirements and consequences at issue here, employers should consult with employment law counsel to assist with implementing these procedures and addressing employee questions or complaints about noncompliance

EXCEPTIONS

The mask requirements do not apply to employees of and visitors to public, private, and parochial preschool programs, and elementary and secondary schools, including charter and renaissance schools as the state’s health and safety protocols for those schools govern mask wearing.

The requirements in this Executive Order do not apply to religious institutions if applying the health and safety standards would prohibit the free exercise of religion or to the U.S. Government.

The requirements in this Executive Order do not apply to the following employees if complying with them will interfere with their ability to do their jobs: first responders, healthcare personnel, emergency management personnel, emergency dispatchers, 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 government employees engaged in emergency response services.

The state has previously issued numerous executive orders for specific types of employers, including but not limited to retailers, restaurants, construction, gyms, colleges and universities, and personal care providers.  Executive Order 192 supplements those issued for those employers, but if the requirements of this new Executive Order conflict with those requirements, the previously issued requirements continue to apply except as indicated in Executive Order 192.