November 30, 2020

Volume X, Number 335

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COVID-19 Spike Prompts NJ Governor to Issue New Restrictions for Indoor Bars/Restaurants, Indoor Organized Sports, and Gatherings

The rising number of COVID-19 cases in New Jersey has prompted Governor Phil Murphy to issue two new Executive Orders aimed at tightening restrictions on businesses and activities, with a goal of slowing the spread of the virus: (1) Executive Order 194 (“EO 194”) sets limits on indoor operations for bars/restaurants, prohibits indoor interstate youth sports competitions, and clarifies occupancy limits for personal care services; and (2) Executive Order 196  (“EO 196”) tightens prior restrictions on indoor and outdoor gatherings.

EO 194

Indoor/Outdoor Dining

EO 194, which became effective November 12, 2020, requires bars and restaurants to close indoor operations to the public from 10:00 p.m. to 5:00 a.m., but permits them to operate their full range of normal business hours for outdoor dining and food delivery and/or takeout services. Casinos may continue to operate but must stop indoor food and beverage service between 10:00 p.m. and 5:00 a.m., including on casino floors. Similarly, indoor retail, recreational, and entertainment business that are permitted to be open may operate after 10:00 p.m. only if they prohibit the consumption of food or beverages between 10:00 p.m. and 5:00 a.m.  Regardless of the time, bars and restaurants may not seat patrons at any indoor bar area, and in-person service to patrons standing in bar areas continues to be prohibited.

EO 194 clarifies that bars and restaurants that are permitted to offer in-person service in indoor areas must ensure that tables are six feet apart in all directions from another table or seat, but where that is not possible, establishments may erect barriers between tables consistent with safety standards from the Department of Health (“DOH”), while still complying with the capacity limits of Executive Order 183 (“EO 183”) (limiting capacity for indoor dining at 25 percent of the establishment’s indoor capacity, excluding the establishment’s employees).   According to the DOH’s safety standards (which can be found in full here for indoor dining and here for outdoor dining), the table barriers for indoor dining must be:

a minimum of five feet (5 ft) in height, but no higher than six feet (6 ft) in height and must not be within 18 inches of a sprinkler head or block emergency and/or fire exits. Physical barrier options include plexiglass or other non-porous dividers or partitions and comply with current requirements regarding wall finishes. Establishments must ensure that such barriers do not restrict airflow throughout the restaurant.

For outdoor dining, EO 194 allows for the use of structures, such as plastic domes, but no more than eight individuals are permitted to dine together at a time and the structure should be ventilated for a minimum of 15 minutes and cleaned and sanitized between seatings. These structures must also comply with all other applicable codes and regulations (such as the Fire Safety Code) and establishments must obtain necessary prior municipal approvals and permits.

Indoor Interstate Youth Sports Competitions

EO 194 suspends indoor interstate youth sports competitions, including those operated by schools, clubs and recreational programs.   Such programs “are also prohibited from hosting indoor interstate youth sports competitions outside of New Jersey, or indoor youth sports competitions outside of New Jersey that would require New Jersey teams to travel to another state.” Under the order, an “indoor interstate youth sports competition” includes “any sports game, scrimmage, tournament, or similar competition that is conducted indoors with opposing teams or individuals from different states competing against each other and which would require an opposing team or individual to travel from a state outside of New Jersey.”

This suspension does not impact collegiate and professional sports activities, which are permitted to continue operations subject to compliance with applicable laws, regulations and Executive Orders (including the restrictions on recreational and entertaining businesses in Executive Order 157, which we wrote about here), and restrictions on gathering in place at the time the sporting activity occurs.

Personal Care Services

EO 194 clarifies that personal care services that were authorized by Executive Order 157 to reopen their indoor facilities to the public  must limit occupancy of any indoor premises to 25 percent of the stated maximum capacity, if applicable, at any one time, excluding the facility’s employees.

EO 196

In the introductory language of EO 196, Gov. Murphy states that “approximately 13 percent of all outbreaks in New Jersey between March 20 through November 1 can be attributed to private gatherings, consistent with the role indoor gatherings have played in leading to further spikes of COVID-19 in other states and countries.”  Recognizing that is it challenging to monitor mask wearing/social distancing and to properly contact trace for informal events such as “large house parties,” EO 196 sets new, lower, limits for indoor and outdoor gatherings, with several exceptions.

Indoor Gatherings

Indoor gatherings are limited to 10 persons, except as follows:

  • For indoor religious services or celebrations, political activities, wedding ceremonies, funerals, or memorial services, the number of attendees is limited to 25 percent of the capacity of the room in which the event takes place, but regardless of the capacity of the room, such limit shall never be larger than 150 or smaller than 10. For purposes of this provision, any private residence or residential unit shall be treated as a single “room;”

  • Legislative proceedings of state, county, or local government, including local Boards of Education, and state and local judicial proceedings are not subject to the capacity limits on gatherings in EO 196 or any other applicable Executive Order; and

  • The provision of Executive Order 183 governing indoor gatherings for entertainment centers where performances are viewed or given, including movie theaters, performing arts centers, and other concert venues, and provides (among other requirements) that capacity must be limited to 150 people (excluding the business’s employees) or 25% of a room’s capacity— whichever number is lower remains in effect.

EO 196 provides that indoor professional and collegiate athletic competitions are subject to the indoor gathering limit of 10 persons, excluding  athletes, coaches, referees, and trainers, and other individuals necessary for the competitive professional or collegiate sporting event (essentially allowing up to 10 spectators).  The number of individuals present inside facilities where indoor professional or collegiate athletic competitions are taking place may not exceed 25 percent of the capacity of the room in which it takes place, and such limit may not exceed 150 persons. Additionally, EO 196 reiterates that the provisions of Paragraph 1 of Administrative Order No. 2020-22 regarding indoor gatherings continues to apply.

All other indoor athletic practices and competitions are limited of 10 persons, unless the number of individuals who are necessary for the practice or competition, i.e, players, coaches, and referees, is greater than 10 persons. In that case, the indoor practice or competition may proceed, but no other persons, including spectators, maybe present.  In addition, the number of individuals at such an indoor gathering still may not exceed 25 percent of the capacity of the room in which it takes place, and such limit may not exceed 150 persons.

The indoor gathering limits became effective at 6:00 a.m. on November 17, 2020.

Outdoor Gatherings

EO 196 establishes a 150 person maximum for outdoor gatherings, except for religious services or celebrations, political activities, wedding ceremonies, funerals, or memorial services (which do not have a numerical limit on attendees).  Outdoor entertainment centers where performances are viewed or given (including movie theaters, performing arts centers, and other concert venues), are subject to the 150-person maximum, but must also limit the number of patrons to a number that ensures that all individuals can remain six feet apart.

Professional and collegiate athletic competitions conducted outdoors are subject to the outdoor gathering limit of 150 persons, excluding athletes, coaches, referees, trainers, and other necessary individuals. All other outdoor sports practices and competitions are subject to the limit of 150 persons, inclusive of athletes, coaches, referees, and trainers.  In addition, EO 196 reiterates that the provisions of Paragraph 1 of Administrative Order No. 2020-22 regarding outdoor gatherings shall continue to apply.

EO 196’s outdoor limits become effective at 6:00 a.m. on November.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 325
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Jennifer Barna Employment Lawyer Epstein Becker

JENNIFER STEFANICK BARNA is a Senior Counsel in the Employment, Labor & Workforce Management and Litigation practices, in the firm's Newark office. Her practice focuses on civil litigation and corporate counseling in the areas of employment law and complex commercial matters. Ms. Barna represents businesses in a broad spectrum of industries, including commercial real estate, financial services, health care, and retail.

Ms. Barna's experience includes:

  • Representing employers in state and federal...
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