On April 8, 2020, New Jersey Governor Phil Murphy signed Executive Order No. 122 (“Order 122”) requiring certain businesses that are permitted to remain open (as set forth in his prior Executive Order 107, about which we wrote about here, and other prior Orders) take specific steps to protect employees and customers from COVID-19, and directing the cessation of all non-essential construction projects.  Three days later, on April 11, 2020, Gov. Murphy signed Executive Order No. 125 (“Order 125”) requiring NJ Transit and private bus and rail companies to limit rider capacity and to take other protective steps, and requiring face masks and other protections where customers enter bars and restaurants for take-out service.

Order 122

Essential Retail Businesses

Order 122 requires essential retail business to adopt policies that, at a minimum:

• Limit occupancy at 50% of the stated maximum store capacity, if applicable, at one time;

• Establish hours of operation, wherever possible, that permit access solely to high-risk individuals, as defined by the CDC;

• Install a physical barrier, such as a shield guard, between customers and cashiers/baggers, wherever feasible or otherwise ensure six feet of distance between those individuals, except at the moment of payment and/or exchange of goods;

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

• Provide employees break time for repeated handwashing throughout the workday;

• Arrange for contactless pay options, pickup, and/or delivery of goods wherever feasible and, wherever possible, consider populations that do not have access to internet service;

• Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to staff and customers;

• Require frequent sanitization of high-touch areas such as restrooms, credit card machines, keypads, counters and shopping carts;

• Place conspicuous signage at entrances and throughout the store, if applicable, alerting staff and customers to the required six feet of physical distance;

• Demarcate six feet of spacing in check-out lines to demonstrate appropriate spacing for social distancing; and

• Require workers and customers to wear cloth face coverings while on the premises, except where doing so would inhibit that individual’s health or where the individual is under two years of age, and require workers to wear gloves when in contact with customers or goods. Businesses must provide, at their expense, the mandated face coverings and gloves for their employees. In addition, if a customer 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, unless the business is providing medication, medical supplies, or food, in which case the business policy should provide alternate methods of pickup and/or delivery of such goods. When an individual declines to wear a face covering on store premises due to a medical condition that inhibits such usage, neither the essential retail business nor its staff may require the individual to produce medical documentation verifying the stated condition.

Essential and Non-Essential Construction Projects

Order 122 mandates the cessation of all non-essential construction projects in New Jersey, and defines essential construction projects as:

• Projects necessary for the delivery of health care services, including but not limited to hospitals, other health care facilities, and pharmaceutical manufacturing facilities;

• Transportation projects, including roads, bridges, and mass transit facilities or physical infrastructure, including work done at airports or seaports;

• Utility projects, including those necessary for energy and electricity production and transmission, and any decommissioning of facilities used for electricity generation;

• Residential projects that are exclusively designated as affordable housing;

• Projects involving pre-K-12 schools, including but not limited to projects in Schools Development Authority districts, and projects involving higher education facilities;

• Projects already underway involving individual single-family homes, or an individual apartment unit where an individual already resides, provided the construction crew has 5 or fewer individuals;

• Projects already underway involving a residential unit for which a tenant or buyer has already entered into a legally binding agreement to occupy the unit by a certain date, and construction is necessary to ensure the unit’s availability by that date;

• Projects involving facilities at which any one or more of the following takes place: the manufacture, distribution, storage, or servicing of goods or products that are sold by online retail businesses or essential retail businesses, as defined by Executive Order 107 (2020) and any subsequent Administrative Order pursuant to that Order;

• Projects involving data centers or facilities that are critical to a business’s ability to function;

• Projects necessary for the delivery of essential social services, including homeless shelters;

• Any project necessary to support law enforcement agencies or first responder units in their response to the COVID-19 emergency;

• Any project that is ordered or contracted for by federal, state, county, or municipal government, or any project that must be completed to meet a deadline established by the federal government;

• Any work on a non-essential construction project that is required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project; and

• Any emergency repairs necessary to ensure the health and safety of residents.

Permitted manufacturing, warehouse and construction businesses

Order 122 requires the adoption of policies such as those that: (a) limit entry by non-essential visitors; (b) limit workplace meetings and workgroups to fewer than 10 persons; (c) stagger stop and start times (and lunch or other breaks), where practicable; (d) require people to maintain a distance of 6 feet or more from one another, wherever practicable: (e) restrict number of people who can access common areas at one time; (f) limit sharing of tools and other equipment; and (g) require workers and visitors to wear cloth face coverings (and stating that the business must provide these face coverings, and also gloves, to its employees), with exceptions consistent with those described for retail businesses, as described above.

Order 122 also identifies certain policies that all essential retail, manufacturing, warehouse and construction businesses (and owners of buildings where those businesses operate) must enact, if/as applicable, concerning: (a) employees with COVID-19 symptoms and/or known or potential exposure to employees who have been diagnosed with COVID-19; and (b) cleaning and disinfecting the workplace (particularly for high touch areas, or areas where there was a known or potential exposure).

Order 125

Public transportation

Order 125 requires NJ Transit and private transportation carriers to enact policies that:

• May limit occupancy at 50% of the stated maximum capacity on all trains, buses and light rail lines in accordance with any guidelines instituted by NJ Transit operational divisions;

• Require infection control practices, such as coughing and sneezing etiquette and proper tissue usage and disposal;

• Arrange for contactless pay options across all modes of transportation wherever feasible and, wherever possible, consider populations that do not have access to internet service;

• Arrange for back door entry on buses wherever feasible, and take seats out of service near the bus operator to allow for proper social distancing from the bus operator wherever feasible;

• Require frequent sanitization of high-touch areas in stations, such as restrooms, waiting areas, credit card machines, and keypads;

• Place conspicuous signage at stations and throughout train cars, buses and light rail vehicles, if applicable, alerting workers and customers to the required six feet of physical distance; and

• Require workers and customers to wear cloth face coverings while on trains, buses and light rail vehicles, with exceptions and guidelines similar to those applicable to retail and other businesses, as described above and in Order 122, including that NJ Transit must provide, at its expense, such face coverings and gloves for their workers, to the extent supplies are available.

Bars and Restaurants

Finally, Order 125 requires that all bars and restaurants that are permitted to offer delivery or take-out service pursuant to Order 107 (and subsequent Orders) must, at a minimum:

• Limit occupancy at 10% of the stated maximum capacity, wherever feasible;

• Ensure six feet of distance between workers and customers, except at the moment of payment and/or exchange of goods;

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

• Provide employees break time for repeated handwashing throughout the workday;

• Arrange for contactless pay and pickup/delivery options wherever feasible and, wherever possible, consider populations that do not have access to internet service;

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

• Require frequent sanitization of high-touch areas like credit card machines, keypads, and counters to which the public and workers have access;

• Place conspicuous signage at entrances and throughout the food business, if applicable, alerting staff and customers to the required six feet of physical distance; and

• Require workers and customers to wear cloth face coverings and gloves while on the premises, except where doing so would inhibit that person’s health, and require workers to wear gloves when in contact with customers or goods, with similar exceptions and guidelines applicable to other business as summarized above with respect to Order 122.