Governor Murphy issued Executive Order 107 on March 21, 2020 (the “Order”), which requires the closure of all non-essential brick-and-mortar retail businesses, and requires all New Jersey residents to remain at home or at their place of residence unless engaging in one of nine exempted activities. Order at ¶ 2.
One of the exempted activities permitting travel within the State is when a person is “reporting to, or performing, their job.” Id. However, and as it relates to this exemption, the Order requires that “all businesses or non-profits in the State, whether closed or open to the public, must accommodate their workforce, wherever practicable, for telework or work-from-home arrangements.” Order at ¶ 10.
In the event that the functions of a particular employee or employees cannot be performed through a telework or work-from-home arrangement, the Order allows those employees to be at the place of employment, but the business or non-profit must make its “best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.” Order at ¶ 11 (emphasis added).
The Order specifically identifies certain types of employees that may need to be physically present at their place of businesses. These include the following:
- Law enforcement, fire fighters and other first responders;
- Cashiers or store clerks;
- Construction workers;
- Utility workers;
- Repair workers;
- Warehouse workers;
- Lab researchers;
- Information technology maintenance workers;
- Janitorial and custodial staff; and
- Certain administrative staff.
Id. The Order also requires that persons shall engage in social distancing when in public (i.e., staying six feet apart when practical), which would apply to employees working at a business location. Order at ¶ 3. At a press conference announcing Executive Order 107, the Governor implored those critical employees who must go to work and do their jobs at their place of employment to observe proper hygienic protocols of hand washing and social distancing.
The plain language of the Order, as well as the Governor’s description of the Order at his press briefing on the subject, demonstrates the intent that all residents with the ability to remain at home do so, while still allowing non-retail, non-essential businesses to operate. Businesses, to the extent possible, must provide their employees with means to work from home. If a particular employee’s function makes it impossible for him or her to work from home, the employee may travel to and be at the place of business, but the business must ensure that the total amount of employees present are the absolute minimal amount necessary to maintain essential operations, and that those employees engage in social distancing and good hygienic practices.
The Governor and Superintendent of the New Jersey State Police announced that the Order will be enforced by the County Prosecutors’ offices in accordance with the law. Any violation of the Order is considered a disorderly persons offense, punishable by six months in jail or up to a $1,000 fine, to be prosecuted in the municipality where the offense occurred. See N.J.S.A. App. A:9-49.
Lastly, it should be noted that today the Governor also issued Executive Order 108, which clarified that local and county officials may not enact or enforce rules or regulations that conflict with Executive Order 107. For example, a locality or county cannot enact a “travel ban” or other regulation since this would exceed the provisions of the Order. Executive Order 108 is designed to avoid the confusion that ensued last week resulting from Bergen County’s (now preempted) efforts to ban “all worldly businesses” from operating in any fashion.
Under Executive Order 108, a locality or county can, however, enforce Executive Order 107, including the provisions related to unnecessary travel or social distancing. Because the Order permits employees to travel to and from their places of business, the Governor’s Office has encouraged employers to give employees “a letter indicating that the employee works in an industry permitted to continue operations.”
Should you require additional guidance on the Order, or have any other questions, please contact Co-Chairs Kevin G. Walsh or David J. Pascrell of Gibbons Government & Regulatory Affairs Department. Because the situation regarding the COVID-19 response is extremely fluid, it is possible that the rules pertaining to business operations will change in the coming days. We will continue to monitor events and attempt to keep you apprised of the situation.