Apr 9, 2020

NJ Executive Order 122 Imposes Additional Requirements Upon Essential Retail Businesses

By John P. Campbell, Esq. and Rebecca J. Rosen, Esq.

On April 8, 2020, New Jersey Governor Murphy signed Executive Order No. 122 (“EO 122”) imposing additional requirements upon all essential retail businesses to limit the spread of COVID-19 (https://nj.gov/infobank/eo/056murphy/pdf/EO-122.pdf). EO 122 also ceases all non-essential construction projects and Schenck Price has prepared a separate Legal Alert to address those issues.  EO 122 is effective on Friday, April 10, 2020 at 8:00 p.m. and the additional requirements imposed on essential retail businesses are described below.

Additional In-Person Operation Requirements for Essential Retail Businesses

Paragraph 1 of EO 122 imposes additional requirements for essential retail businesses maintaining in-person operations including a new limitation on store capacity, the installation of physical barriers, and required cloth face coverings for workers and customers. A complete list of the new requirements is below:

a.       Limit occupancy at 50% of the stated maximum store capacity, if applicable, at one time;

b.      Establish hours of operation, wherever possible, that permit access solely to high-risk individuals, as defined by the CDC;

c.       Install a physical barrier, such as a shield guard, between customers and cashiers/baggers wherever feasible or otherwise ensure six feet of distance between those individuals, except at the moment of payment and/or exchange of goods;

d.      Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;

e.       Provide employees break time for repeated handwashing throughout the workday;

f.        Arrange for contactless pay options, pickup, and/or delivery of goods wherever feasible. Such policies shall, wherever possible, consider populations that do not have access to internet service;

g.      Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to staff and customers;

h.      Require frequent sanitization of high-touch areas like restrooms, credit card machines, keypads, counters and shopping carts;

i.        Place conspicuous signage at entrances and throughout the store, if applicable, alerting staff and customers to the required six feet of physical distance;

j.        Demarcate six feet of spacing in check-out lines to demonstrate appropriate spacing for social distancing; and

k.      Require workers and customers to wear cloth face coverings while on the premises, except where doing so would inhibit that individual’s health or where the individual is under two years of age, and require workers to wear gloves when in contact with customers or goods.

  • Businesses must provide, at their expense, such face coverings and gloves for their employees.
  • If a customer refuses to wear a cloth face covering for non-medical reasons and if such covering cannot be provided to the individual by the business at the point of entry, then the business must decline entry to the individual, unless the business is providing medication, medical supplies, or food, in which case the business policy should provide alternate methods of pickup and/or delivery of such goods.
  • Nothing in the stated policy should prevent workers or customers from wearing a surgical-grade mask or other more protective face covering if the individual is already in possession of such equipment, or if the business is otherwise required to provide such worker with more protective equipment due to the nature of the work involved.
  • Where an individual declines to wear a face covering on store premises due to a medical condition that inhibits such usage, neither the essential retail business nor its staff shall require the individual to produce medical documentation verifying the stated condition.

Additional Illness Related Requirements for Essential Retail Businesses

Paragraph 4 of EO 122 imposes new illness related requirements for essential retail businesses including the following:

a.       Immediately separate and send home workers who appear to have symptoms consistent with COVID-19 illness upon arrival at work or who become sick during the day;

b.      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;

c.       Clean and disinfect the worksite in accordance with CDC guidelines when a worker at the site has been diagnosed with COVID-19 illness; and

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

Cleaning Protocols for Owners of Buildings Used for Essential Retail Businesses Maintaining In-Person Operations

Paragraph 5 of EO 122 imposes new requirements upon owners of buildings used for essential retail businesses. Specifically, EO 122 requires owners of buildings used for commercial enterprises, including but not limited to facilities for grocery stores, shall adopt policies that, at minimum, implement the following cleaning protocols in areas where operations are conducted:

a.       Clean and disinfect high-touch areas routinely in accordance with CDC guidelines, particularly in spaces that are accessible to staff, customers, tenants, or other individuals, and ensure cleaning procedures following a known or potential exposure in a facility are in compliance with CDC recommendations;

b.      Otherwise maintain cleaning procedures in all other areas of the facility; and

c.       Ensure that the facility has a sufficient number of workers to perform the above protocols effectively and in a manner that ensures the safety of occupants, visitors, and workers.

Schenck Price continues to monitor legislative developments at the federal, state and local level, and will provide updates on future legislative enactments.  If you have any questions about the laws referenced in this Alert, please contact the authors John Campbell at jpc@spsk.com or Rebecca Rosen at rjr@spsk.com.

DISCLAIMER:  This Alert is designed to keep you aware of recent developments in the law.  It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.

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