MEMBER ADVISORY– November 3, 2020 Executive Order 192: Business Safety Updates
Tuesday, November 3, 2020
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Posted by: APTANJ
APTANJ MEMBER ADVISORY– November 3, 2020 Executive Order 192: Business Safety Updates Vincent N, Buttaci, Esq. Nicole P. Allocca, Esq. Governor Murphy just issued Executive Order 192 – an Order placing mandatory workplace coronavirus safety rules as cases begin to resurge. These safety rules will take effect on November 5, 2020 in hopes to slow the spread of the coronavirus. The measures are as follows: Workers must always wear masks. Workers must stay six feet apart when possible. Frequent hand-washing breaks. Worker health screenings before every shift. Workers informed of possible COVID-19 exposure. Employers must provide face masks and sanitizing materials. Employers must regulatory sanitize surfaces.
These new safety measures apply to businesses, non-profits, educational entities, and governmental entities that have any employees performing work at the employer’s worksite.
Virtually every employer in New Jersey that requires or permits its workforce to be physically present at the worksite must establish, at a minimum, these measures to protect employees, customers, and others who come into physical contact with the employer’s operations. All New Jersey employers should review and update their COVID-19 protocols accordingly to ensure they comply with the standards outlined in the Executive Order. While employers take stock of their COVID-19 protocols, they are also strongly encouraged to implement or revisit their Occupational Safety and Health Administration protocols and manual.
The specifics of the requirements are as follows:
I. Masks in the Workplace. The Executive Order requires everyone on the worksite – including employees and customers – to wear a cloth or disposable face mask while on the premises. Employees, of course, can wear a surgical-grade mark if they desire to do so. Importantly, employers can prohibit those who refuse to wear a mask from the worksite, except when a permissible exemption exists. An example of such exemption would be that the employee cannot wear a mask because of a disability. Thus, under the New Jersey Law Against Discrimination (“NJLAD”) or Americans with Disabilities Act (“ADA”), the employer may be required to reasonably accommodate the employee in another way so that the employee can work unless doing so would impose an undue hardship on the employer’s operations.
Additionally, employers may allow employees to remove facemasks when employees are (i) at a workstation that is more than six feet from others; (ii) when employees are alone in a walled office; or (iii) when it is impractical to keep one on, such as eating or drinking. Employers cannot require non-employees, i.e., customers or visitors, to wear a face mask while entering or on the premises if: (i) the individual is receiving a service from the employer that cannot be performed while the non-employee is wearing a mask; (ii) an individual is eating or drinking; or (iii) the individual is under two years of age.
Importantly, employers can prohibit customers and other visitors who refuse to wear a mask from entering the worksite, except when prohibited from doing so by another law, unless that individual maintains a disability that makes wearing a mask unworkable. Just as employers may be required to accommodate employees under NJLAD or the ADA, they may be required to reasonably accommodate the disabled customer or visitor in another way unless doing so would impose an undue hardship on the employer’s operations.
II. Social Distancing When Practicable. Executive Order 192 requires all employees, customers, and other visitors to be at least six feet apart from one another when practicable while (i) entering and leaving the workplace; (ii) during meetings and other activities taking place in a single room; (iii) when in common areas such as restrooms and breakrooms. If employees cannot feasibly be six feet apart because of either limitations in the work area or the nature of the employee’s work, employers must enforce mask wearing and shall install physical barriers between workstations whenever possible.
III. Employee and Worksite Hygiene, Sanitization and Disinfection. Employers must make available to employees, customers, and visitors sanitization materials, such as hand sanitizer and sanitizing wipes at no cost. Additionally, employers should mandate regular employee hand washing. As such, employers must provide access to adequate hand washing facilities. If an employer requires employees to wear gloves, the employers must provide them. Further, employers must clean/disinfect high-touch areas, including restrooms, handrails, doorknobs, and employee equipment.
IV. Employee Health Screenings and Mandates for COVID-19 Exposure. Employers must begin each employee’s shift with a daily health check. A daily health check could include (i) temperature checks; (ii) visual symptom checks, and/or (iii) requiring employees to fill out a self-assessment checklist and/or health questionnaire. These employee health checks must comply with Centers for Disease Control (“CDC”) guidance on COVID-19 symptoms. Additionally, the checks must follow guidance from the Equal Employment Opportunity Commission (“EEOC”) and comply with confidentiality requirements of the ADA and NJLAD.
If the employee appears to have COVID-19 symptoms, the employer must immediately separate the employee from other employees, customers, and visitors. The individual must be sent home from their work shift. Additionally, the employer must comply with any applicable paid time off requirements under the New Jersey Earned Sick Leave Law, the federal Family First Coronavirus Response Act, and the employer’s Paid Time Off policy.
Further, if the employee is confirmed to have COVID, the employer must: (i) notify all employees known to have been exposed to the employee consistent with confidentiality requirements of the ADA and NJLAD, and EEOC guidance; (ii) clean and disinfect the worksite based on CDC guidelines; and (iii) follow all directives and guidelines set by the DOH, CDC and OSHA for maintaining a clean, safe and healthy work environment.
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Complaints and Possible Violations. This Executive Order is subject to additional guidance from both the Department of Labor (“DOL”) and Department of Health (“DOH”). Specifically, the DOL expects to roll out procedures for employees to report employers who fail to comply with the above-referenced health and safety requirements and a mechanism to investigate same. In the interim, employers should be on notice that it is plausible that employees could seek relief under the state whistleblower law if they are subject to retaliation for reporting a complaint about and refusing to participate in an employer’s noncompliance with Executive Order 192. Additionally, causes of action under the NJLAD and ADA if health screenings and/or reasonable accommodation obligations are not handled properly.
The DOH plans to introduce employment notices informing employees of their rights and employer’s obligations as well as compliance and safety training for these new protocols.
Exceptions. The requirements in Executive Order 192 do not apply to the following employees if complying with them will interfere with their ability to do their jobs: first responders, healthcare personnel, emergency management personnel, emergency dispatchers, public health personnel, court personnel, law enforcement and corrections personnel, hazardous materials responders, transit workers, child protection and child welfare personnel, housing and shelter personnel, military employees, and government employees engaged in emergency response services.
To the extent the state has previously issued executive orders for specific types of employers, including, but not limited to retailers and personal care providers, Executive Order 192 supplements those issued for those employers. However, if the requirements of Executive Order 192 conflict, the previously issued requirements apply, except as indicated in the Order.
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As always, our attorneys are here to answer any questions you may have. Please feel free to call us at 609-799-5150 or mail us at info@buttacilaw.com with your questions or concerns. Stay safe, stay healthy, and we will get through this together.
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