Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On May 24 and 25, 2021, New Jersey Governor Philip D. Murphy signed Executive Order (EO) 242 and EO 243, respectively, easing COVID-19-related workplace restrictions. While EO 242 had less impact on employers than many had hoped, the governor clarified and expanded his directives with EO 243, which is a positive step towards returning to pre-COVID-19 workplace conditions.
Effective June 4, 2021, one of the key changes for employers is the removal of the mandate, where practicable, to allow employees to telework or work from home (as set forth in EO 107). This is the one area where New Jersey’s stance was not in keeping with the majority of states and will have a large impact on restoring regular business operations.
The two executive orders set forth many other changes to business operations in the state. Effective Friday, May 28, 2021, the following sectors that have opened their indoor and/or outdoor premises to the public are permitted to operate at full capacity without limiting occupancy to ensure individuals remain six feet apart: (i) retail establishments, (ii) personal care services, (iii) health clubs, (iv) recreational and entertainment businesses (e.g., pools, amusement parks, and water parks), (v) casinos and sports wagering lounges, and (vi) racetracks.
Additionally, on May 28, the following provisions, which are relevant to employers, will take effect:
- Fully vaccinated individuals are not required to wear masks in indoor public settings, regardless of whether they can maintain social distancing. This provision applies to worksites that are open to the public for the sale of goods, attendance at events or to provide a service. It does not apply to closed worksites, such as offices, warehouses and manufacturing plants. However, individuals that are not fully vaccinated are strongly urged to continue to wear masks in indoor public spaces.
- Employers and entities overseeing indoor public spaces may impose stricter requirements and mandate that individuals wear masks, even if no longer required, unless prohibited by federal or state law.
- Employers cannot restrict employees or customers from wearing masks or penalize or retaliate against those who choose to do so.
- Attendees at indoor gatherings are not required to socially distance. However, unvaccinated individuals should continue to socially distance and any indoor gathering in a workplace that is not a public space should adhere to social distancing guidelines.
- The requirement of maintaining six feet of social distancing in all indoor and outdoor settings will be lifted.
- All indoor gathering limits will be lifted.
EO 242 does not eliminate social distancing mandates for schools, childcare facilities or camps. Similarly, it does not supersede any mask or social distancing requirements in place in health care settings, correctional facilities, homeless shelters or any forms of public transportation traveling into, out of, or within the United States.
On Friday, June 4, 2021, the following measures will take effect:
- Individuals who are fully vaccinated no longer must wear face masks indoors.
- Employers that, as defined in EO 192, operate businesses in workplaces that are not open to the public (including, but not limited to, warehouses and manufacturing facilities) are not mandated to require employees wear face masks or social distance at the worksite so long as employees provide proof they are fully vaccinated. As to individuals who are either not fully vaccinated or whose vaccination status cannot be determined, the employer must continue to require those individuals to wear face coverings and socially distance in indoor spaces.
- Individual businesses that oversee indoor spaces may continue to require that employees, customers, and/or guests wear masks while on the premises. This includes employers in settings where masks and social distancing is no longer required pursuant to EO 243.1
While the state’s new guidance is a promising sign of a return to “normal,” unmasking as well as relief from required social distancing and telework will be significant (and possibly frightening) changes for employers and employees alike. It is important to remember that these changes do not fully put us back to the status quo ante and that many questions and challenges for businesses remain.
For example, for employers that choose to follow the CDC guidelines in accordance with these executive orders, how will they ascertain who is vaccinated and, furthermore, enforce the new policies to ensure that only vaccinated employees are unmasked? Even when telework is no longer required, how will the fact that some New Jersey schools continue to be closed for partial days or weeks (at least until the end of the school year) affect employees’ ability or willingness to return to the worksite? What about employees who do not want to return because they cannot or will not get vaccinated, or for whom vaccination is not effective? Or employees who were previously denied the right to work from home as an accommodation?
These questions are complicated and require a fact-specific analysis. Employers are strongly encouraged to consult with counsel regarding their policies and procedures and regarding all questions to ensure compliance with EO 242, EO 243 and other New Jersey COVID-19 regulations.
1 Businesses that continue to require masks / social distancing must do so in accordance with Section 1(b)(ii) of EO 192, which states: “Masking requirements specific to customers and visitors: (1) Employers may deny entry to the worksite to any customer or visitor who declines to wear a face mask, except when doing so would violate State or federal law. The employer may be required to provide a customer or visitor who declines to wear a mask due to a disability services or goods via a reasonable accommodation, pursuant to ADA and NJLAD, unless such accommodation would pose an undue hardship on the employer’s operations; and (2) Where a customer or other visitor declines to wear a face mask on the premises due to a disability that inhibits such usage, neither the employer nor its employees shall require the individual to produce medical documentation verifying the stated condition, unless production is otherwise required by State or federal law.”