New Jersey Governor Issues Stay Home Executive Order Closing Non-Essential Retail Businesses

On March 21, 2020, Governor Phil Murphy signed Executive Order (EO) No. 107, requiring New Jersey residents to stay at home and closing the physical location of any non-essential retail business so long as the order stays in effect. Although their “brick-and-mortar” locations must remain closed, businesses may continue to operate their online and telephone delivery services to the extent they are licensed to do so. The order went into effect on March 21, 2020, at 9:00 p.m.

Rather than list every non-essential retail business that must close to the public, EO 107 identifies the essential retail businesses that can keep their physical locations open. Importantly, the New Jersey State Director of Emergency Management (who is the Superintendent of the State Police) has the discretion to add to the list of essential retail businesses.

Those essential retail businesses that continue to operate must comply with social distance practices, including making “all reasonable efforts to keep customers six feet apart and frequent use of sanitizing products on common surfaces.” When practicable, these businesses must “provide pickup services outside or adjacent to their stores for goods ordered in advance online or by phone.”

Businesses (and non-profit organizations), whether closed or open to the public, must allow employees who can work remotely to do so. To the extent that such employees cannot perform functions remotely, businesses should operate with the minimal number of on-site employees as possible to ensure critical operations can continue and they must adhere to best social distancing practices.

The order does not limit, restrict, or prohibit health care or medical services to the public, essential services to low-income residents, access to food banks, the operations of media (i.e., newspapers, television, and radio), or the operations of law enforcement.

This order continued the closures and restrictions that were contained in EO 104 signed by Governor Murphy on March 16, 2020. However, EO 108 (also signed on March 21, 2020) invalidates any county or municipality restriction that in any way will or might conflict with EO 107, or “which will or might in any way interfere with or impede its achievements.” Municipalities and counties can only impose additional restrictions on (1) online marketplaces for arranging or offering lodging, and (2) municipal or county parks.

Exceptions to the Stay at Home Order

In accordance with EO 107, all New Jersey residents are directed to stay at home. However, residents may leave their homes to travel to and from work and perform their jobs to the extent that they are permitted to work under EO 107. Other notable exceptions to the “stay at home” order set forth in paragraph 2 include:

• obtaining goods or services from an essential retail businesses;
• obtaining takeout food or beverages from restaurants or other dining establishment;
• seeking medical attention, essential social services, or assistance from law enforcement or emergency services;
• visiting family members or other individuals with whom the resident has a close personal relationship;
• engaging in outdoor activities by themselves or with immediate family members, such as going for walks or running;
• leaving home for educational, religious, or political reasons;
• leaving home because of a reasonable fear for his or her health or safety; and
• leaving home at the direction of law enforcement or other government agency.

When residents leave their homes, they must stay six feet away from other individuals, except for immediate family members, caretakers, household members, or romantic partners. Additionally, they must avoid public transportation unless they have no other feasible choice and must practice social distancing while riding public transportation.

Essential Retail Businesses

EO 107 does not define the term “non-essential retail business.” Rather, the order lists the following essential retail businesses that may keep their physical locations open during normal business hours:

• Grocery stores, convenience stores, farmer’s markets and farms that sell directly to customers, and other food stores, including retailers that offer a varied assortment of foods comparable to what exists at a grocery store;
• Pharmacies and medical marijuana dispensaries;
• Medical supply stores;
• Gas stations;
• Ancillary stores within healthcare facilities;
• Hardware and home improvement stores;
• Banks and other financial institutions with retail functions;
• Laundromats and dry-cleaning services;
• Stores that principally sell supplies for children under five years old;
• Pet stores and other veterinary service locations;
• Car dealerships, but only to provide auto maintenance and repair services;
• Auto mechanics;
• Printing and office supply shops;
• Mail and delivery stores; and
• Liquor stores.

While continuing to operate, these businesses must adhere to best social distancing practices (i.e., make reasonable efforts to keep customers six feet apart and frequent use of sanitizing products).

Previous State-Ordered Closures and Restrictions Are Continued

    EO 107 continued the following closures and restrictions announced by the state last week:

• Bar and restaurants must remain closed for on-premise service. These businesses may provide drive-through, take-out, and delivery service only. Alcoholic beverages must be sold in their original containers from the principal public barroom, and may not be consumed onsite.
• All licensed breweries and wineries are permitted to sell alcoholic beverages. However, such beverages must be in their original containers and sold through customer pick up and/or delivered by licensees in accordance with their licenses.
• Recreational and entertainment businesses must remain closed. These include casinos; racetracks; stabling facilities; retail sports wagering lounges; gyms and fitness centers; movie theaters; performing art centers; concert venues; nightclubs; indoor portions of retail shopping malls; and places of public amusement.
• Personal care businesses must remain closed. These include barber shops; beauty salons; day and medical spas; nail and eyelash salons; tattoo parlors; massage parlors; and tanning salons.
• Public and private social clubs must remain closed. This includes facilities owned or operated by the American Legion, Veterans of Foreign Wars, and Knights of Columbus.
• All public and private libraries must remain closed.
• All schools, including preschool programs, elementary and secondary schools, and institutions of higher education, must remain closed.

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.