New Executive Order Sets Workplace Requirements

Governor Murphy signed Executive Order 192 on October 28, 2020. Effective at 6:00 a.m. on Thursday, November 5, 2020, every business, non-profit, and governmental or educational entity, that requires or permits its workforce, whether in part or as a whole, to be physically present at a worksite to perform work is required to abide by the certain requirements, at minimum, to protect employees, customers, and all others who come into physical contact with its operations.

The order reads, in part:

a. Require that individuals at the worksite maintain at least six feet of distance from one another to the maximum extent possible, including but not limited to during worksite meetings, orientations and similar activities that would traditionally require individuals to be present in a single room or space and in close proximity, in common areas such as restrooms and breakrooms, and when individuals are entering and exiting the workplace. Where the nature of an employee’s work or the work area does not allow for six feet of distance to be maintained at all times, employers shall ensure that each such employee wears a mask as provided in subsection b. and shall install physical barriers between workstations wherever possible.

b. Require employees, customers, visitors, and other individuals entering the worksite to wear cloth or disposable face masks while on the premises, in accordance with Centers for Disease Control and Prevention (“CDC”) recommendations, except where the individual is under two years of age or where it is impracticable for an individual to wear a face mask, such as when the individual is eating or drinking or where a service being provided by the employer cannot be performed on an individual who is wearing a mask; i. Masking requirements specific to employees: 1. Employers may permit employees to remove face masks when the employees are situated at their workstations and are  more than six feet from other individuals at the workplace, or when an individual is alone in a walled office; 2. Employers must make available, at their expense, such face masks to their employees; 3. Nothing in this subsection shall prevent employees from wearing a surgical-grade mask or other more protective face mask, or interfere with the employer’s obligation to provide employees with more protective equipment if it is otherwise required because of the nature of the work involved; and 4. Employers may deny entry to the worksite to any employee who declines to wear a face mask, except when doing so would violate State or federal law. Where an employee cannot wear a mask because of a disability, an employer may, consistent with the Americans with Disabilities Act (“ADA”) and/or New Jersey Law Against Discrimination (“NJLAD”), be required to provide the employee with a reasonable accommodation unless doing so would be an undue hardship on the employer’s operations. An employer may require employees to produce medical documentation supporting claims that they are unable to wear a face mask because of a disability. ii. Masking requirements specific to customers and visitors: 1. Employers may deny entry to the worksite to any customer or visitor who declines to wear a face mask, except when doing so would violate State or federal law. The employer may be required to provide a customer or visitor who declines to wear a mask due to a disability services or goods via a reasonable accommodation, pursuant to ADA and NJLAD, unless such accommodation would pose an undue hardship on the employer’s operations; and 2. Where a customer or other visitor declines to wear a face mask on the premises due to a disability that inhibits such usage, neither the employer nor its employees shall require the individual to produce medical documentation verifying the stated condition, unless production is otherwise required by State or federal law. iii. Any prior requirements imposed by an Executive Order restricting the ability of an employer to require the production of medical documentation, or to deny entry to a customer,  employee, or other visitor to the worksite that refuses to wear a face mask, that are inconsistent with the terms of this Paragraph are hereby superseded. iv. Subsection b. shall not apply to employers subject to Executive Order No. 175 (2020).

c. Provide sanitization materials, such as hand sanitizer that contains at least 60% alcohol and sanitizing wipes that are approved by the United States Environmental Protection Agency for SARS-CoV-2 virus to employees, customers, and visitors at no cost to those individuals;

d. Ensure that employees practice regular hand hygiene, particularly when such employees are interacting with the public, and provide employees break time for repeated handwashing throughout the workday and access to adequate hand washing facilities. Employers may adopt policies that require employees to wear gloves in addition to regular hand hygiene. Where an employer requires its employees to wear gloves while at the worksite, the employer must provide such gloves to employees;

e. Routinely clean and disinfect all high-touch areas in accordance with DOH and CDC guidelines, particularly in spaces that are accessible to employees, customers, or other individuals, including, but not limited to, restrooms, hand rails, door knobs, other common surfaces, safety equipment, and other frequently touched surfaces including employee used equipment, and ensure cleaning procedures following a known or potential exposure are in compliance with CDC recommendations;

f. Prior to each shift, conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, consistent with CDC guidance, including latest CDC guidance regarding COVID-19 symptoms, consistent with the confidentiality requirements of the ADA, NJLAD and any other applicable laws, and consistent with any guidance from the Equal Employment Opportunity Commission (“EEOC”) and the New Jersey Division on Civil Rights;

g. Immediately separate and send home employees who appear to have symptoms, as defined by the CDC, consistent with COVID-19 illness upon arrival at work or who become sick during the day. Employers subject to the New Jersey Earned Sick Leave Law, New Jersey Family Leave Act, N.J.S.A. 34:11D-12 and/or federal leave laws must continue to follow the requirements of the law, including by allowing individuals to use accrued leave in the manner permitted by law and employer policy, when requiring employees to leave the workplace in accordance with the provisions of this subparagraph;

h. Promptly notify all employees of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the ADA and any other applicable laws, and consistent with guidance from the EEOC;

i. Clean and disinfect the worksite in accordance with CDC guidelines when an employee at the site has been diagnosed with COVID-19 illness; and

j. Continue to follow guidelines and directives issued by the New Jersey DOH, the CDC and the Occupational Safety and Health Administration, as applicable, for maintaining a clean, safe and healthy work environment.

For details, please read EO-192.