Given the decrease in the rate of reported new cases of COVID-19 in New Jersey, on May 13, 2020, Governor Phil Murphy signed Executive Order Number 142 (2020) (“EO 142”) permitting, among other things, the resumption of non-essential construction, curbside pickup at non-essential retail businesses, and gatherings in vehicles. The construction and non-essential retail provisions of EO 142 went into effect at 6:00 a.m. on Monday, May 18, and the provisions allowing for gatherings in vehicles took effect when the order was signed on May 13. EO 142 is part of New Jersey’s “Road Back” strategy to begin the careful restart of the economy.
Resumption of “Non-Essential” Construction and Requirements for All Construction Projects
While Governor Murphy’s Executive Order Number 122 (“EO 122”) allowed only “essential construction projects” to continue, subject to adhering to certain restrictions, EO 142 provides that all construction projects in New Jersey (“essential” and “non-essential”) may proceed, provided they adopt policies that include, at minimum, the following requirements:
- Exclude non-essential visitors from the worksite.
- Restrict project meetings and workgroups to fewer than ten individuals.
- Follow social distancing requirements of six feet or more distance between individuals wherever possible, including when picking up or delivering materials or equipment.
- Stagger work start and stop times and lunch breaks where practicable.
- Identify congested and “high-risk areas” and limit the number of individuals in those areas concurrently where practicable.
- Require workers to wear cloth face coverings and gloves, with both provided at the expense of the business. Visitors must also wear cloth face coverings.
- Impose infection control practices, including regular hand washing and proper tissue usage and disposal.
- Limit sharing of tools, equipment, and machinery.
- Where running water is not available, provide portable washing stations with soap and/or alcohol-based hand sanitizers.
- If the worksite is an occupied residence, sanitize work areas and remain a distance of at least six feet from the occupants.
- Frequently sanitize high-touch areas such as restrooms, breakrooms, equipment, and machinery.
- Place conspicuous signage at entrances and throughout the worksite setting forth the above mandates.
EO 142 supersedes Administrative Order 2020-11 governing construction of religious facilities and Paragraph 3 of EO 122 to the extent it applied to requirements for businesses engaged in essential construction projects.
Curbside Pickup at Non-Essential Retail Businesses
EO 142 also permits non-essential retail businesses to reopen to the public for curbside pickup of goods, but these businesses must continue to have their in-store operations closed to customers. Similar to the policies imposed on construction, the following minimum requirements apply to non-essential retail businesses who choose to offer curbside pickup:
- In-store operations must be limited to those employees who are responsible for the operations required for curbside pickup.
- Wherever feasible, customer transactions should be handled in advance by phone, email, fax, or other means that avoid person-to-person contact.
- Customers shall notify the retailer by text message, email, or phone once they arrive, or make best efforts to schedule their arrival times in advance. Customers should be asked to remain in their vehicles, if arriving by car, until store staff delivers their purchases.
- Designated employees should bring goods outside and place them directly in a customer’s vehicle when possible.
- Retail businesses operating in malls are allowed to provide curbside pickup in accordance with the other requirements outlined above, but employees must bring the goods to customers at the exterior of the mall and place them directly in the customer’s vehicle. The indoor portions of malls must remain closed to the public.
Non-essential retail businesses must also follow social distancing and mitigation practices outlined in previous orders, including requiring frequent sanitization of high-touch areas and workers to wear cloth face coverings and gloves. Businesses must provide face coverings and gloves to their employees at their expense.
Gatherings in Vehicles
EO 142 expressly provides that gatherings in vehicles do not violate the Governor’s ban on gatherings under Executive Order Number 107. Examples of such gatherings include drive-in movies and religious services and drive-through farms and safaris. As with the other activities allowed in EO 142, vehicle gatherings are also subject to restrictions, which include the following:
- Attendees must remain in their vehicles throughout the gathering unless an occupant needs to get out of the vehicle for that person’s own health or safety or for the health or safety of another, or to use the restroom.
- The vehicle windows and doors must remain closed at all times, unless (1) there is six feet of distance between other vehicles or individuals, or (2) an officer, public official, or security guard asks that the windows or doors be open.
- Individuals organizing the gathering who are not in vehicles must follow social distancing and wear cloth face coverings.
- To the degree that a gathering requires pre-payment or seeks donations of any kind, contactless options for pre-payment or donation, such as online or by telephone, must be offered wherever feasible.
Penalties for violating EO 142 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 both in the discretion of the court. The State Director of Emergency Management has the discretion to add or clarify the terms of EO 142.