In an effort to combat the recent rising COVID-19 numbers in the New Jersey, Governor Phil Murphy signed Executive Order (EO) No. 192 on October 28, 2020, mandating health and safety protocols for employers with employees, customers, or other visitors on-site. While many of these protocols have been required in certain industries under prior executive orders, all employers must now adhere to the protocols effective Thursday, November 5, 2020. The commissioner of the New Jersey Department of Health (DOH) has the authority to add health and safety protocols to the list outlined in EO 192.
Appropriate Social Distancing Measures
Under EO 192, employees are required to “maintain at least six feet of distance from one another to the maximum extent possible.” This requirement applies to employees’ workstations, during meetings, in common areas, and when entering and leaving the workplace.
If employees cannot maintain six feet of distance due to the nature of the work, employers must require them to wear a face covering and must “install physical barriers between workstations wherever possible.”
Employers must require all employees, customers, and other visitors to wear a face covering while on-site, and make them available, at the employer’s expense, to employees. The two exceptions to this requirement are: (i) when the individual is under two years old, or (ii) when it is “impracticable” to wear a face covering (such as when an individual is eating or drinking). Employers may deny entry to employees, customers, or other visitors who refuse to wear a face covering “except when doing so would violate [s]tate of federal law.”
However, an important change from Governor Murphy’s prior executive orders is that employers now are expressly permitted to “require employees to produce medical documentation supporting claims that they are unable to wear a face mask because of a disability.” Employers may be required under the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD) to engage in the interactive process to determine if a reasonable accommodation can be provided to the employee.
The EO prohibits employers from requesting medical documentation from customers or other visitors who refuse to wear a face covering due to a medical condition. However, EO 192 recognizes that an employer may be required to provide customers or other visitors with a reasonable accommodation under the ADA and NJLAD.
The EO requires employers to provide, at their expense, sanitization materials to employees, customers, and other visitors. This includes “hand sanitizer that contains at least 60% alcohol and sanitizing wipes that are approved by the [U.S.] Environmental Protection agency for SARS-CoV-2 virus.”
Additionally, the EO requires employers to ensure that employees follow good hygiene practices. Specifically, the order requires employers to give employees breaks for repeated handwashing during their shifts and access to handwashing facilities. The EO permits employers to require employees to wear gloves while working, but must provide the gloves at their expense.
Cleaning and Disinfecting
Under EO 192, employers must “[r]outinely clean and disinfect all high-touch areas” that are accessible to employees, customers, and other visitors in adherence with the DOH’s and the U.S. Centers for Disease Control and Prevention’s (CDC) guidelines. High-touch areas include, but are not limited to, “restrooms, hand rails, door knobs, other common surfaces, safety equipment, and other frequently touched surfaces.”
According to the EO, if an employee at the worksite is diagnosed with COVID-19, employers must “[c]lean and disinfect the worksite in accordance with CDC guidelines.”
The EO requires employers to conduct daily health checks of employees before the start of each shift, “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.” Permissible screenings include temperature checks, visual symptom checks, self-assessment checklists, and/or health questionnaires.
The EO requires employers to “immediately separate and send home employees who appear to have [COVID-19] symptoms, as defined by the CDC.” Employees who are sent home may be permitted to use accrued leave under the New Jersey Earned Sick Leave Law, New Jersey Family Leave Act, and/or federal leave laws.
Upon learning of any known exposure to COVID-19 at the worksite, employers must promptly notify all employees subject to “the confidentiality requirements of the ADA and any other applicable laws, and consistent with guidance from the EEOC.”
Importantly, the commissioner of the Department of Labor and Workforce Development has the authority to establish a complaint process and procedure for employees to report violations of the health and safety protocols set forth in this EO 192. The DOH will establish an investigation process for such complaints, which may include workplace inspections.
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. Important information for employers is also available via the firm’s webinar programs.