By Frank A. Custode, Esq.
Effective November 5, 2020, Executive Order No. 192 is in effect, requiring New Jersey employers to implement certain workplace safety protocols. This is the State’s latest effort to increase workplace safety for employees. Specifically, Executive Order No. 192 requires the following protocols:
- Individuals “at the worksite maintain at least six feet of distance from one another to the maximum extent possible;”
- “Employees, customers, visitors, and other individuals entering the worksite to wear cloth or disposable face masks while on the premises, in accordance with [CDC] recommendations” (although employees may “remove face masks when the employees are situated at their workstations and are more than six feet from other individuals at the workplace, or when an individual is alone in a walled office”);
- Employers must “provide sanitization materials, such as hand sanitizer that contains at least 60% alcohol and sanitizing wipes;”
- Ensure that employees “practice regular hand hygiene;”
- “Routinely clean and disinfect all high-touch areas in accordance with DOH [Department of Health] and CDC guidelines;”
- “Conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, consistent with CDC guidance;”
- “Immediately separate and send home employees who appear to have symptoms, as defined by the CDC, consistent with COVID-19 illness upon arrival at work or who become sick during the day;”
- “Promptly notify all employees of any known exposure to COVID-19 at the worksite” consistent with confidentiality requirements under the Americans with Disabilities Act and Equal Employment Opportunity Commission guidance;
- “Clean and disinfect the worksite in accordance with CDC guidelines when an employee at the site has been diagnosed with COVID-19 illness;” and
- “Continue to follow guidelines and directives issued by the New Jersey DOH, the CDC and the Occupational Safety and Health Administration.”
Note that the Order authorizes the New Jersey Department of Labor and Workforce Development (“DOLWD”) to enforce the requirements set forth therein. Specifically, the DOL is required to “establish an intake mechanism to receive complaints” from employees, create “a process for consideration of such complaints” and coordinate with the “Commissioner of the DOH and any other applicable State entity to establish a process to address such complaints.” Note the Order further authorizes the DOLWD to “provide compliance and safety training for employers and employees.”
Moreover, note that the Order states that “penalties may be imposed” against employers for failure to comply with the Order and that failure to comply may result in “closure by the Commissioner of the DOH.” Lastly, while no private right of action exists under the Order, employers may be susceptible to claims under the New Jersey Conscientious Employee Protection Act (“CEPA”) for taking adverse employment action against employees who avail themselves to the protections under the Order.
* Frank A. Custode is a Partner at Curcio Mirzaian Sirot LLC and the Chair of the Firm’s Employment practice.