Update on Executive Action in Trenton - May 13, 2020

Update on Executive Action in Trenton - May 13, 2020

May 13, 2020

On Wednesday, May 13, 2020, Governor Murphy signed an executive order (EO 142) permitting resumption of non-essential construction and permitting sales by non-essential retail businesses with curbside pick-up, in each case, subject to certain conditions. These provisions are effective at 6:00 a.m. on Monday, May 18, 2020. EO 142 also permits, subject to certain conditions, drive-thru and drive-in car gatherings, effective immediately. EO 142 remains in effect until revoked or modified by the Governor.

EO expressly provides that municipalities, counties and other agencies of the State cannot adopt any rules or regulations that will conflict with, or interfere with the achievement of, the provisions of EO 142. A copy of EO 142 is available here.

Non-Essential Construction Resumes; New Conditions for Essential Construction

Non-essential construction projects may resume, subject to certain conditions.  While these conditions are substantially the same as the requirements previously imposed on essential construction in paragraph 3 of Executive Order 122 (EO 122), there are several new requirements, including placing conspicuous signage at entrances and throughout the worksite. These new requirements of EO 142, outlined below, also apply to businesses engaged in construction previously deemed “essential” and supersede the requirements set forth in paragraph 3 of EO 122 insofar as it applied to businesses engaged in “essential” construction projects. 

Similar to EO 122, EO 142 requires that all businesses engaged in construction projects, whether or not previously designated as “essential,” must adopt policies that include, at a minimum, the requirements set forth below. Except where specifically noted below, the requirements are essentially identical to those contained in EO 122.

a. Prohibit non-essential visitors from entering the worksite;

b. Engage in appropriate social distancing measures when picking up or delivering equipment or materials (*New in EO 142*);

c. Limit worksite meetings, inductions, and workgroups to groups of fewer than 10 individuals;

d. Require individuals to maintain six feet or more distance between them wherever possible;

e. Stagger work start and stop times where practicable to limit the number of individuals entering and leaving the worksite concurrently;

f. Identify congested and “high-risk areas,” including but not limited to lunchrooms, breakrooms, portable rest rooms, and elevators, and limit the number of individuals at those sites concurrently where practicable (*Modification of a requirement in EO 122*);

g. Stagger lunch breaks and work times where practicable to enable operations to safely continue while utilizing the least number of individuals possible at the site;

h. Require workers and visitors to wear cloth face coverings, in accordance with CDC recommendations, while on the premises, except where doing so would inhibit the individual’s health or the individual is under two years of age, and require workers to wear gloves while on the premises. Businesses must provide, at their expense, such face coverings and gloves for their employees. If a visitor 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. Nothing in the stated policy should prevent workers or visitors 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 businesses 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 the premises due to a medical condition that inhibits such usage, neither the business nor its staff shall require the individual to produce medical documentation verifying the stated condition;

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

j. Limit sharing of tools, equipment, and machinery;

k. Where running water is not available, provide portable washing stations with soap and/or alcohol-based hand sanitizers that have greater than 60% ethanol or 70% isopropanol (*Modification of a requirement in EO 122*);

l. Require frequent sanitization of high-touch areas like restrooms, breakrooms, equipment, and machinery;

m. When the worksite is an occupied residence, require workers to sanitize work areas and keep a distance of at least six feet from the occupants (*New in EO 142*); and

n. Place conspicuous signage at entrances and throughout the worksite detailing the above mandates (*New in EO 142*).

It is important to note that EO 142 did not amend or supersede the requirements contained in paragraph 4 of EO 122 that essential retail businesses and business performing essential construction projects adopt additional policies regarding procedures for, among other things, sending home sick workers and notification of COVID-19 exposure. Nor does EO 142 impose those requirements on businesses performing non-essential construction. We would expect subsequent clarification of these provisions.

Non-Essential Retail Sales with Curb-Side Pickup

Non-essential retail businesses are permitted to reopen with curbside pickup only, provided the businesses adopt policies that include, at minimum, the following:

a. Customers shall not be permitted to enter the brick-and-mortar premises, but shall be permitted to pick up goods outside of the establishment that they have already ordered (“curbside pickup”);

b. In-store operations shall be limited, wherever feasible, to those employees who are responsible for the operations required for curbside pickup;

c. Customer transactions shall be handled in advance by phone, email, facsimile, or other means that avoid person-to-person contact, wherever feasible;

d. Customers shall notify the retailer by text message, email, or phone once they arrive, whenever feasible, or make best efforts to schedule their arrival time in advance. The customer shall be asked to remain in their vehicle, if arriving by car, until store staff delivers the purchase;

e. Designated employees shall bring goods outside of the retail establishment and place the goods directly in a customer’s vehicle whenever feasible; and

f. Retail businesses operating in shopping malls are permitted to operate by curbside pickup, in accordance with the other requirements of this paragraph, but employees must bring the goods to customers at the exterior of the mall and shall place them directly in a customer’s vehicle whenever feasible. The indoor portions of shopping malls shall remain closed to the public in accordance with Executive Order No. 107 (2020).

Additionally, EO 142 provides that the policies should also ensure that non-essential retail business employers, at a minimum:

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

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

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

j. Require frequent sanitization of high-touch areas to which workers have access; and

k. Require workers to wear cloth face coverings and gloves when interacting with other workers or customers 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. Nothing in the stated policy prevents workers 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.