On October 28, 2020, New Jersey Governor Phil Murphy signed new executive order addressing COVID19 workplace safety. Under Executive Order No. 192 (“EO 192”), beginning November 5, 2020, NJ employers who require or permit employees to work on-site must maintain certain COVID19-related protocols. Also, EO 192 lays the groundwork for reporting and enforcement mechanisms for employees to complain about workplace violations. As a result, employers may see an uptick in claims alleging unsafe work environments as well as increased regulatory scrutiny. Employers should immediately review their policies and protocols for compliance with this new EO. Further, employers need to be extra vigilant about taking actions that could appear retaliatory.
Application
Previous executive orders provided fractured mandates across business industries. EO 192, in contrast, applies to all employers, public and private, with certain exceptions, including for schools, first responders, and other limited groups. However, employers cannot ignore prior directives specific to their industries. The present order “supplements the requirements outlined in any Executive Order.” Any inconsistencies with prior orders are resolved in favor of that prior order absent clear rescission by EO 192.
What’s New?
EO 192 permits employers to deny entry to employees or visitors who refuse to wear face masks, unless doing so would violate federal or state law. Employers must offer reasonable accommodation to employees or visitors who decline to wear face masks for disability-related reasons.
EO 192 changes several standard operating procedures, such as when NJ employers are permitted to request medical documentation to substantiate refusals to wear face masks for disability reasons — in the case of employees it is generally permitted; in the case of customers or visitors it is not permitted.
EO 192 further reinforces employer obligations to provide PPE and hand sanitizers at employers’ cost. It also emphasized requirements that employers must provide hand-washing breaks to their employees.
What’s Not So New?
Several mandates required by EO 192 should seem familiar. Those include (1) maintaining rules around physical distancing, barriers and masking, (2) maintaining policies about sanitation, cleanliness and disinfection of high-touch areas, (3) conducting employee health checks before each shift, and (4) exclusion of symptomatic employees from the workplace.
Training and Penalties
EO 192 requires the NJ Department of Labor & Workforce Development (“DOLWD”) to create safety and training materials for both employers and workers about this order. NJ employers should keep their eyes open for the release of these materials in the future.
Penalties for violating EO 192 include fines up to $1,000, up to six months in prison, and a closure of a worksite.
For more information or questions pertaining to your company’s specific situation, please reach out to Jennie Woltz at jwoltz@wfpclaw.com or Benjamin Folkinshteyn at bfolkins@wfpclaw.com.
Thanks — very helpful.