Citing a lack of proper standards and protections from the Federal government, on October 28, 2020, New Jersey Gov. Phil Murphy signed Executive Order No. 192 in a top-down effort to standardize private sector workplace protections in response to the ongoing COVID-19 pandemic. The Order, which went into effect on November 5, 2020, imposes mandatory protocols for any workplace (public or private) that requires or permits their employees to return to work at their worksite.
The protocols require:
- individuals at the worksite to maintain distance from others of at least six feet;
- employees, customers, and worksite visitors to wear facemasks in accordance with CDC recommendations;
- readily available sanitation materials, such as hand sanitizer and sanitizing wipes approved by the FDA;
- employees to practice regular hand hygiene and providing break time for repeated handwashing;
- routine cleaning and disinfecting of high-touch areas;
- daily health checks and health screening of employees prior to each work shift, and immediately excluding sick employees pursuant to applicable leave laws;
- prompt notification of employees of any known exposure to COVID-19.
On November 17, 2020, Gov. Murphy signed an additional Executive Order which imposes increased restrictions on social gatherings. Generally, gatherings are allowed, but different limits apply depending on the type of gathering, and where it is happening.
Indoor gatherings must be limited to 10 people. However, certain indoor gatherings such as weddings, funerals, and religious and political activities are less restricted; they must be limited to 150 people or 25 percent of a room’s capacity – whichever number is lower. Legislative and judicial proceedings are not subject to the limits on indoor gatherings. All attendees of indoor gatherings must wear face coverings and stay six feet apart.
For now, outdoor gatherings must be limited to 500 people and social distancing must be practiced. However, effective November 23rd, general outdoor gatherings must be limited to 150 people. There is no limit for outdoor gatherings for religious or political activities protected under the First Amendment. Face coverings in outdoor public spaces are required when social distancing is difficult to maintain.
Many New Jersey businesses and workplaces have already implemented many of the safeguards and procedures listed in the new Orders. Not only are these voluntary safeguards now mandatory, the Orders additionally provide the State the means to enforce these protocols.
Specifically, the Orders direct the New Jersey Department of Labor (DOL) and the Department of Health (DOH) to provide “efforts to enforce” the new requirements. These Departments are instructed to create a streamlined process for employees to submit tips and complaints against any employer suspected to be noncompliant with the COVID-19 protocols. The State bureaucracies are also broadly given the authority to investigate these complaints, which may include inspections, subpoenas, and interviews.
Finally, if a violation is found, the Orders indicate that penalties “may be imposed” against an employer or employer representative according to the terms set forth in N.J.S.A. App. A9-49 and -50. These penalties include fines up to $1,000.00 and imprisonment for up to six months. The Commissioner of the DOH is also given the power to close any businesses found to be non-compliant with the Orders and “subsequent requirements issued by the Commissioner of the DOH.”
What does this mean for employers that have reopened their worksites in the state? For many, the requirements of these Orders are nothing more than “business as usual” as they operate in a COVID-19 gripped world. Many of the Orders’ procedures were taken from the OSHA COVID-19 guidelines and have been voluntarily adopted by many New Jersey businesses.
What makes these Orders especially important to employers and their insurance carriers are the proposed enforcement mechanisms and penalties. Businesses and worksites that choose to reopen their worksites in New Jersey now have an added element of risk should they be found to be in violation of the Orders. Indeed, what even constitutes a violation may often be in the eye of the beholder, as the Orders fail to provide guidance for ambiguous terms such as “routine,” “adequate” and “prompt.” The potential for monetary fines and even imprisonment cannot be overlooked. Additionally, the full effect of the Orders remains to be seen as, to date, the DOH and DOL have not yet prepared or released the details of their planned enforcement practices.
Furthermore, while the Orders do not create a private cause of enforcement action against an employer, it is a near certainty that a defendant employer found in violation of these Orders will find itself in an uphill battle while attempting to disprove negligence against its employees and customers. From a workers’ compensation perspective, claimants alleging workplace disability due to exposure to COVID-19 will also point to any violations as proof that he or she contracted the disease at work. This is notwithstanding legislation recently passed in New Jersey shifting the burden of proof from many claimants to employers in COVID-19 based occupational claims.
Employers and insurance carriers may find state, local and federal legislation and protocols overwhelming as the COVID-19 pandemic marches on. The employment attorneys of Vaughan Baio & Partners can offer your business a lifeline to navigate the unique obstacles arising from the pandemic.
If you have any questions about your company’s policies or how these Orders could impact your business, please contact:
Anthony A. Skalski (267-386-4368; askalski@vaughanbaio.com)
Joseph E. Vaughan (267-386-4350; jvaughan@vaughanbaio.com)
Madeline S. Baio (267-386-4377; mbaio@vaughanbaio.com)
