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On April 8, 2020, New Jersey Governor Phil Murphy signed Executive Order No. 122, requiring the closure of all non-essential construction projects beginning at 8:00 p.m. on Friday, April 10, 2020. The executive order does not define “non-essential construction project”; instead, it lists the following “essential construction projects” that may continue to operate:

  • Projects necessary for the delivery of health care services (e.g., hospitals, health care facilities, and pharmaceutical manufacturing facilities);
  • Transportation projects;
  • Utility projects;
  • Affordable housing residential projects;
  • School projects (e.g., pre-K-12 schools and higher education facilities);
  • Projects already underway involving single-family homes or apartments with a construction crew of five or fewer individuals;
  • Projects already underway involving a residential unit for which a tenant or buyer has legally agreed to occupy by a certain date and the construction is necessary for the unit’s availability;
  • Projects involving facilities in which “the following takes place: the manufacture, distribution, storage, or servicing of goods or products that are sold by online retail businesses or essential retail businesses (as defined by Executive Order No. 107 (2020) and subsequent Administrative Orders)”;
  • “Projects involving data centers or facilities that are critical to a business’s ability to function”;
  • “Projects necessary for the delivery of essential social services, including homeless shelters”;
  • “Any project necessary to support law enforcement agencies or first responder units in their response to the COVID-19 emergency”;
  • “Any project that is ordered or contracted for by Federal, State, county, or municipal government”;
  • “[A]ny project that must be completed to meet a deadline established by the Federal government”;
  • Any work on a non-essential construction project that is required to physically secure the site, ensure building structural integrity, abate hazards, or confirm that the site is protected and safe during the suspension of the project; and
  • “Any emergency repairs necessary to ensure the health and safety of residents.”

The New Jersey State Director of Emergency Management (who is the Superintendent of the State Police) has the discretion to amend this list of essential construction projects.

Essential construction projects that continue to operate must continue to adhere to guidelines and directives issued by the New Jersey Department of Health, the Centers for Disease Control and Prevention (CDC), and the Occupational Safety and Health Administration to maintain a clean, safe, and healthy work environment for employees. These businesses must also implement policies and protocols to enforce best practices regarding social distancing and good hygiene, including but not limited to:

  • Prohibit all non-essential visitors from entering the worksite;
  • Limit worksite meetings and groups to fewer than 10 people;
  • Require individuals to maintain a minimum 6 feet of social distancing when possible;
  • Stagger work start and stop times to limit the number of individuals entering and leaving the worksite at the same time, to the extent possible;
  • Stagger lunch breaks and work times to enable operations to safely continue while utilizing the fewest number of individuals as possible;
  • Limit the number of individuals who can access common areas at the same time;
  • Provide employees with cloth face coverings and gloves, and require workers to wear them while on premises unless there is a medical reason prohibiting it (Note: If any individual (employee or visitor) declines to wear a face covering on premises due to a medical reason, the business cannot require the individual to produce medical documentation verifying his or her condition.);
  • Require essential visitors to wear cloth face coverings while on premises (Note: If a visitor refuses to wear a face covering for a non-medical reason and if a covering cannot be provided to the visitor, then the business must deny entry to the individual);
  • “Require infection control practices, such as regular hand washing”;
  • “Limit sharing of tools, equipment, and machinery”;
  • Provide hand sanitizer and wipes to employees and visitors; and
  • “Require frequent sanitization of high-touch areas” (e.g., restrooms, breakrooms, equipment, and machinery).

These businesses must also implement policies and protocols in the event the worksite is exposed to COVID-19, including but not limited to:

  • “Immediately separate and send home workers who appear to have symptoms consistent with COVID-19”;
  • “Promptly notify workers of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the Americans with Disabilities Act and any other applicable laws”; and
  • “Clean and disinfect the worksite in accordance with CDC guidelines when a worker at the site has been diagnosed with COVID-19.”

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.

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