On April 8, 2020, New Jersey Governor Phil Murphy signed Executive Order Number 122 (2020) (“EO 122”), which marks the twenty-first consecutive Order issued in response to the COVID-19 pandemic. EO 122 requires all non-essential construction projects to cease and imposes additional mitigation requirements on essential retail businesses, construction projects, and industries to reduce the rate of community spread of COVID-19 in New Jersey. EO 122 took effect beginning at 8:00 p.m. on Friday, April 10, 2020 (the “Effective Date”), and remains in effect until revoked or modified by the Governor.
“Essential” vs. “Non-Essential” Construction Projects and Requirements for Manufacturing and Warehousing Businesses and Essential Construction
EO 122 requires the physical operations of all “non-essential” construction projects to cease as of the Effective Date but, subject to certain requirements discussed below, allows “essential construction projects” to continue. “Essential construction projects” is defined broadly to include the following 14 categories of projects:
- Healthcare projects at hospitals, other healthcare facilities, and pharmaceutical manufacturing facilities
- Transportation projects involving roads, bridges, airports, seaports, and mass transit facilities or physical infrastructure
- Utility projects
- Residential affordable housing projects
- Schools projects from kindergarten through higher education
- Projects already started involving individual single-family homes or apartments already occupied, with a construction crew of five or fewer
- Projects already started involving residential homes or apartments where contracts for sale or lease are already in place and the construction is necessary to ensure the availability by the contract dates
- Projects involving the manufacture, distribution, storage, or servicing of goods or products that are sold by online retail businesses or essential retail businesses
- Data centers or facility projects that are critical to businesses’ ability to function
- Essential social services projects, such as homeless shelters
- Projects supporting law enforcement agencies or first responder units in connection with their response to the COVID-19 emergency
- Federal, state, county, or municipal government projects that must be completed to meet deadlines established by the federal government
- Work on non-essential construction projects required to physically secure the sites of the projects or abate any hazards if the construction were to remain in their current conditions during the suspension of the projects
- Emergency repairs required to ensure the health and safety of residents
Although essential construction projects may proceed, those projects, along with manufacturing businesses and warehousing businesses that are allowed to continue operation, are required to adopt the following minimum requirements:
- Exclude non-essential visitors from the worksites
- Restrict project meetings and workgroups to fewer than ten individuals
- Follow social distancing requirements of six feet or more distance between individuals
- Stagger work start and stop times, lunch breaks, and work times
- Limit the number of people who can access common areas at the same time
- Require workers to wear cloth face coverings and gloves, with both provided at the expense of the business
- Require visitors to wear cloth face coverings
- Impose infection control practices, including regular hand washing, and provide hand sanitizer and sanitizing wipes to workers and visitors
- Limit sharing of tools, equipment, and machinery
- Frequently sanitize high-touch areas, such as restrooms, breakrooms, equipment, and machinery
Additional Requirements on “Essential Retail Business”
EO 122 also imposes additional restrictions and requirements on essential retail businesses that are allowed to maintain operations under Executive Order No. 107 (2020). Such businesses include grocery stores, liquor stores, convenience stores, pharmacies, laundromats, gas stations, pet stores, hardware stores, auto repair, and retail functions of mail and delivery stores and banks. These restrictions are similar to those imposed on the construction industry as discussed above and are aimed at limiting the spread of COVID-19 consistent with the guidelines issued by the Centers for Disease Control (CDC). For example, retail businesses must implement infection control practices, such as regular hand washing and frequent sanitization of “high-touch” areas, provide employees break time to allow for handwashing throughout the day, provide hand sanitizer and wipes for staff and customers, and require workers to wear cloth face coverings and gloves (when in contact with customers or goods). Gloves and cloth face coverings are to be provided by the business at its expense. Customers must also wear cloth face coverings. Children under the age of two and those whose health would be inhibited through wearing a face covering are exempt from the requirement.
Additional restrictions that are unique to retail businesses include limiting occupancy to 50 percent of the store capacity, where possible establishing store hours limited to high-risk individuals as defined by the CDC, installing physical barriers between customers and cashiers/baggers, and arranging for “contactless” pay options, pickup and/or delivery if possible. Consistent with social distancing measures, retail businesses must use signage to demarcate the required six feet of physical distance throughout the stores and at entrances.
Requirements for All Essential Retail, Warehousing, and Manufacturing Businesses and Essential Construction Projects
In addition to the specific requirements imposed separately on essential businesses and construction projects, EO 122 requires all essential retail, warehousing, and manufacturing businesses and businesses performing essential construction projects to adopt policies to reduce the spread of COVID-19 in the workplace. These policies include immediately separating and sending home workers who are symptomatic for COVID-19 and promptly notifying workers of any known exposure to COVID-19. When a worker at the site has been diagnosed with COVID-19, the worksite must be cleaned and disinfected in accordance with CDC guidelines.
Cleaning Protocols for Businesses Authorized to Maintain In-Person Operations
Last, EO 122 establishes cleaning protocols to be followed by businesses authorized to maintain in-person operations, such as warehouses, manufacturers, commercial offices, airports, grocery stores, universities, colleges, government, hotels, and residential buildings with at least 50 units. Such protocols include routinely cleaning and disinfecting high-touch areas as per CDC guidelines and recommendations, particularly in spaces that are accessible to staff, customers, tenants, or other individuals, and maintaining cleaning procedures in all other areas of the facility. These business must maintain sufficient number of workers to perform these tasks.
Penalties for violating EO 122 will be imposed as set forth by statute, with specific reference to the Disorderly Conduct Statute, N.J.S.A. App. A:9-49 and -50 Aiding or Abetting Disorderly Conduct, which carry a term of imprisonment not to exceed six months or a fine not to exceed $1,000.00, or to both in the discretion of the court. The State Director of Emergency Management has the discretion to add or clarify the terms of EO 122.
The scope and breath of EO 122 is extensive and far-reaching. Essential businesses and construction projects allowed to continue operations have a significant responsibility ahead of them to comply with the minimum requirements established to mitigate the spread of COVID-19. For more information, please contact Lisa Lombardo.
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