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What Does New Jersey’s Lifting of the Stay-At-Home Order Mean for Office-Based Workers? … Not Much

On June 1, 2020, New Jersey Governor Phil Murphy announced that the state is on track and expected to enter Stage/Phase 2 of the Restart and Recovery Plan on June 15, 2020, which will permit nonessential retail businesses to reopen to the public and permit in-person outdoor dining, so long as required social distancing and other mitigation protocols are followed. Personal care service providers, such as hair salons, nail salons and barber shops are scheduled to reopen on June 22, 2020.

On June 9, 2020, Governor Murphy signed Executive Order No. 153, lifting the stay-at-home order that had been in place since March 21, 2020. Executive Order No. 153 states, among other things, “Paragraph 2 of Executive Order No. 107 (2020), which requires New Jersey residents to remain home or at their place of residence with limited exceptions, is hereby rescinded.”

CAVEAT

Before non-retail businesses rush to reopen their offices, employers should be aware that Paragraph 10 of Executive Order No. 107, which states: “All businesses or nonprofits in the State, whether closed or open to the public, must accommodate their workforce, wherever practicable, for telework or work-from-home arrangements,” remains in effect. Therefore, New Jersey employers should continue to allow telework arrangements for all employees who can perform their jobs remotely.

Governor Murphy’s comments during the June 9 daily coronavirus press briefing are noteworthy because they signal that (1) telework should continue during Stage 2 (and perhaps Stage 3) of the Restart and Recovery Plan, and (2) any businesses that have been operating with a minimal number of staff on-site necessary to ensure that critical operations continue during the pandemic must have CDC-compliant protocols in place to ensure a safe and healthy workplace. Read the full transcript of the June 9, 2020, briefing.

New Jersey has released additional requirements for reopening based on the industry for bars and restaurants, retail (essential retail and nonessential retail), manufacturing, warehousing, construction, childcare centers and outdoor recreational businesses. Currently, there is no guidance specific to office-based employees.

COMPLIANCE

In the meantime, New Jersey employers should ensure that they are complying with the following mitigation requirements for all businesses:

  • Clean and disinfect high-touch areas routinely in accordance with CDC guidelines, particularly in spaces accessible to staff, customers, tenants or other individuals, particularly following a known or potential exposure.

  • Maintain current cleaning procedures in all other areas of the facility and ensure that the facility has a sufficient number of workers to perform the protocols effectively.

  • Employees who have symptoms consistent with COVID-19 (such as fever or a cough), have been diagnosed with COVID-19, or are undergoing a quarantine for potential exposure to COVID-19, must not report to work.

  • Employees must use a face covering and employers are required to provide materials for this purpose.

  • Under Executive Order 107, permit telework if the job can be performed from home.

  • Maintain six feet of distance from customers/visitors and co-workers.

  • Instruct employees to wash their hands with soap and water or alcohol-based sanitizer frequently, and particularly after contact with shared public surfaces.

These requirements are generally aligned with CDC guidelines and OSHA protocols, which provide more detailed instructions and should be incorporated into a return-to-work plan.

ADDITIONAL GUIDANCE

In addition, the EEOC and the CDC have issued direct guidance that employers must accommodate “higher risk” employees with continued remote work as an accommodation. The definition of higher risk is very broad and a fair portion of most workforces will likely fall into the definition of higher risk, even if they do not self-identify.

Higher risk includes anyone age 65 and older, and any medical condition that can cause someone to be immunocompromised/at higher risk for severe illness, including, heart disease, asthma, diabetes, obesity, liver disease and immune deficiencies. It also includes smokers and those on corticosteroids (prednisone) or other immune-weakening medications. The CDC also has issued additional guidelines that are intended to help safeguard higher-risk workers who may be coming into the office (even if they do not self-identify). For example, the CDC recommends that employers incentivize employees to avoid public transportation and carpooling and/or instruct anyone who uses public transportation or ride-sharing to immediately wash their hands upon arrival at the work location. All of these requirements should be incorporated into any return-to-work plan.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 164
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TRENDING LEGAL ANALYSIS

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About this Author

Lynne Anne Anderson, Drinker Biddle, Lawyer, Employment Litigation
Partner

Lynne Anne Anderson is a practiced jury and bench trial lawyer who handles a wide range of employment litigation, including whistleblower cases, restrictive covenant disputes and wage and hour class/collective actions. Her litigation background gives her the insights necessary to effectively counsel clients who are dealing with frontline employee issues to effectuate a win-win resolution of workplace disputes, and to implement policies and protocols to limit litigation. Lynne is Co-Chair of the Labor and Employment Group's Fair Pay Act Obligations Team...

973-549-7140
Alexa Miller, Labor and employment attorney, Drinker Biddle
Associate

Alexa E. Miller represents clients in a variety of employment-related disputes including discrimination, harassment, wrongful termination, wage and hour compliance, disability management and whistleblower claims in both federal and state courts and before administrative agencies.

In addition, she regularly advises employers on pre-litigation matters, conducts trainings and assists clients with drafting, reviewing and revising human resource handbooks, workplace policies, employment contracts and separation agreements.

973-549-7122
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