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Governor Requires NJ Employers to Implement New Health and Safety Standards as COVID-19 Levels Continue to Spike

Posted: November 3, 2020

In response to the recent uptick of new COVID-19 cases statewide, New Jersey Governor Phil Murphy has issued an Executive Order mandating new health and safety requirements for public and private sector employers alike. Governor Murphy stated that these safety measures are necessary to protect New Jerseyans in all industries from virus spread in the workplace, noting that OSHA has not issued occupational health standards specific to COVID-19 and making clear that New Jersey would continue to take action in areas where the federal government has not. The order goes into effect at 6:00 a.m. on Thursday, November 5, 2020 and applies to every business, non-profit and governmental or educational entity that requires or permits any of its workforce to be physically present at a worksite.

Effective November 5, 2020, and pursuant to Executive Order 192, every private and public sector New Jersey employer is required to implement the following:

1. Daily health checks of employee prior to each shift.

The Order does not mandate a particular type of health screening, but it provides that health checks may include temperature screenings, visual symptom checking, self-assessment checklists, and health questionnaires, provided that the health checks are consistent with the latest guidance from the CDC, EEOC and New Jersey Division on Civil Rights. The employer’s health check protocol and documentation policies must also maintain employee confidentiality as required by the Americans with Disabilities Act (ADA), the New Jersey Law Against Discrimination (NJLAD), and any other applicable law.  The CDC and the EEOC have provided guidance regarding what type of health screening is permitted.

2. Require all individuals on the worksite to maintain at least six feet of physical distance from one another to the maximum extent possible.

This social distancing requirement applies even in meetings, orientation and similar events, common areas such as restrooms and breakrooms, and when individuals are entering and exiting the workplace.

When the nature of the employee’s work does not allow for consistent social distancing of six feet or more: (a) the employees must wear a face mask; and (b) the employer is required to install a physical barrier between workstations wherever possible.

3. Require all employees, customers and visitors entering the worksite to wear either cloth or disposable face masks (or more protective face masks that may be required due to the nature of the employee’s work) in accordance with CDC recommendations, except for school districts and educational facilities subject to Executive Order 175.

Employers must make face masks available to all employees at the employer’s expense. The only exceptions to the face mask requirement are: (a) individuals under two years of age; (b) occasions where an individual is eating or drinking; (c) where a service performed by the employer cannot be performed on an individual wearing a facemask (i.e. during a dental appointment); (d) employees situated in workstations that are more than six feet from other individuals in the workplace, or where the employee is alone in a walled office; and (e) when employees who cannot wear a face mask due to a disability protected by the ADA or NJLAD.

Employers can deny entry to employees, customers and visitors who refuse to wear a face mask, unless doing so would violate the ADA, NJLAD or other applicable law. If an employee cannot wear a face covering due to disability, the employer can require that employee to provide medical documentation supporting this position. In such circumstances, employers must provide a reasonable accommodation to such employees to allow them to perform the essential functions of their position, unless doing so would cause an undue hardship on the employer’s operations.

Employers may not require customers or other visitors to produce medical documentation to verify a medical condition that prevents them from wearing a face mask. Rather, employers should be prepared to provide reasonable accommodations to customers and visitors who decline to wear a face mask due to disability, absent accommodations that would cause an undue hardship on the business.

4. Make hand sanitizer or sanitizing wipes available to all employees, customers and individuals at the employer’s expense.

Any hand sanitizer provided by the employer must contain at least 60% alcohol and sanitizing wipes provided must be consistent with the Environmental Protection Agency’s (EPA) recommendations for sanitizing materials for the COVID-19 virus.  These items must be provided at no cost.

5. Ensure that employees practice regular hand washing and hand hygiene throughout the workday.

If an employer requires employees to wear gloves as part of its personal protective equipment (PPE) plans, the gloves must be provided by the employer at no cost to the employee.

6. Routinely clean and disinfect all high-touch areas on the employer’s premises in accordance with CDC and DOH guidelines.

Common high-touch areas include, but are not limited to, restrooms, hand rails, door knobs, safety equipment, office supplies, and other frequently touched surfaces, materials or equipment.

7. Immediately separate and send home employees who appear to have symptoms of the virus.

An updated list of symptoms defined by the CDC can be found here. Any employee who is unable to work due to COVID-related symptoms must be provided with appropriate leave and benefits consistent with the Families First Coronavirus Response Act (FFCRA), the New Jersey Family Leave Act (NJFLA), and the New Jersey Earned Sick Leave Law (NJESL).

8. Promptly notify all employees of any known exposure to COVID-19 at the worksite, while maintaining confidentiality of the individual who is known or suspected to have the virus.

The EEOC has recently updated its guidance concerning COVID-19 issues in the workplace, including reminding employees that the ADA requires employers to keep confidential any medical information they learn about any applicant or employee, including information about COVID-19 testing, with very limited exceptions.

9. Appropriately clean and disinfect any worksite where an employee has been exposed to the virus in accordance with CDC guidance.

The CDC recommends that employers close off areas used by a worker who has tested positive for COVID-19, that doors and windows be opened to allow for maximum air circulation in impacted areas, and that employers wait at least 24 hours before cleaning or disinfecting surfaces touched by the employee who is sick. Additional cleaning guidance can be found here.

Employers who fail to follow these safety standards can be subject to fines and penalties, as well as closure of the employer’s worksite by the New Jersey Department of Health.

There are extremely limited exceptions to these new standards, which primarily apply to workers involved in emergency management, emergency response, court personnel, transit workers, housing and shelter and certain government activities. The Order also recognizes that the above-listed requirements will not apply to religious institutions to the extent that the application of the mandated safety and health protocols would interfere with the right to free exercise of religion.

The Order goes on to require the New Jersey Department of Labor and Workforce, in consultation with the DOH, will establish a mechanism to receive complaints from individuals regarding the failure of employers to adhere to the Order’s requirements and create a process for consideration of those complaints.  Further, compliance and safety training is to be forthcoming, along with notices and informational materials for employees. 

These new safety and health standards must be implemented in the workplace by this Thursday. Employers and managers should additionally update their internal policies and practices to ensure that employees are following appropriate health and safety procedures, and to provide appropriate leave and benefits to employees who may become exposed to the virus, including paid sick leave, NJFLA leave or FFCRA leave, as required by federal, state or local law. Contact one of Saul Ewing Arnstein & Lehr’s employment law counsel if you have questions about this new Executive Order, implementing appropriate workplace safety standards related to COVID-19, compliance with CDC guidance, or related employment issues.