On Oct. 27, New Jersey Gov. Phil Murphy signed Executive Order 192, the latest executive order issued under the ongoing Coronavirus Disease 2019 (COVID-19) state of emergency. Effective Nov. 5, the order requires all employers to enforce certain workplace safety protocols, many of which may already have been adopted because the requirements track existing guidance from the Centers for Disease Control and Prevention (CDC). 

In particular, the order obligates employers to:

• Require all individuals in the workplace to “maintain at least six feet of distance from one another to the maximum extent possible”;

• Require all individuals, both employees and customers or other visitors, to “wear cloth or disposable face masks while on the premises”;

• Provide sanitization materials to employees and visitors at no cost;

• Ensure employees “practice regular hand hygiene” and are provided “break time” for handwashing throughout the day;

• Regularly “clean and disinfect all high-touch areas”;

• Conduct daily employee health screenings in accordance with CDC guidance, such as “temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires”;

• Separate and send home any employees who appear to have COVID-19 symptoms; and

• Notify all employees of known COVID-19 exposure in the workplace, consistent with ADA confidentiality requirements and EEOC guidance.

Employers may permit employees seated at their workstations to remove masks if they are more than six feet from others, or when “alone in a walled office.” Employers must “make available” masks to employees at the employer’s expense. Finally, employers may deny entry to the workplace to employees or visitors who decline to wear a mask, except where doing so would violate state or federal law (for example, where a disability precludes the employee or visitor from wearing the mask).

The order further authorizes the state Department of Labor and Workforce Development (DOLWD) to “establish an intake mechanism to receive complaints” from employees, and to “coordinate[] with the Commissioner of the DOH and any other applicable state entity to establish a process to address such complaints and to raise potential deficiencies … with the employer.” The DOLWD Commissioner is also tasked with developing “compliance and safety training for employers and employees” related to the health and safety protocols outlined in the order.

No private right of action exists for violations of the order’s provisions. The order does, however, expressly provide that “[p]enalties may be imposed under” the state emergency act’s disorderly conduct statute (which prescribes a maximum penalty of six months jailtime and/or a $1,000 fine). Moreover, employers that fail to comply with the order’s requirements are “subject to, among other actions, closure by the Commissioner of the DOH[.]”

In short, the order confirms as a legal requirement many of the safety protocols employers have been implementing and enforcing for months based on state and federal guidance. To the extent employers are not following these procedures, however, they should endeavor to comply as soon as possible to avoid any potential punitive response from the state.