On March 21, 2020, Governor Phil Murphy issued Executive Order 107 mandating that New Jersey citizens stay home and that nonessential businesses close, with limited exceptions, until further notice. Governor Murphy also issued Executive Order 109, indefinitely postponing all elective surgeries and invasive medical procedures as of March 27, 2020. These restrictions are the state’s latest measures to curb the outbreak of the coronavirus (COVID-19).

All Gatherings and Social Events Must Be Canceled

Under Executive Order 107, all gatherings of individuals, such as parties, celebrations and other social events, must be canceled unless they are otherwise allowed pursuant to the order. The CDC’s guidance further explains that gatherings include conferences, festivals, parades, concerts, sporting events, weddings and other types of assemblies.

All Nonessential Retail Businesses Must Shut Down Brick-and-Mortar Locations

Executive Order 107 further directs the closure of the brick-and-mortar premises of all nonessential retail businesses. Businesses that qualify as “essential” must, wherever practicable, provide pickup services outside or adjacent to their stores for goods ordered online or by phone. Online and telephonic delivery services are allowed to the extent the business is authorized to operate such delivery services pursuant to the order.

Essential Businesses

Essential businesses allowed to stay open include:

• Grocery stores, farmers markets, farms that sell directly to customers and other food stores, including retailers that offer a varied assortment of foods comparable to what exists at a grocery store;
• Pharmacies and alternative treatment centers that dispense medicinal marijuana;
• Medical supply stores;
• Retail functions of gas stations;
• Convenience stores;
• Ancillary stores within healthcare facilities;
• Hardware and home improvement stores;
• Retail functions of banks and other financial institutions;
• Retail functions of laundromats and dry cleaning services;
• Stores that principally sell supplies for children under 5 years old;
• Pet stores;
• Liquor stores;
• Car dealerships, but only to provide auto maintenance and repair services, and auto mechanics;
• Retail functions of printing and office supply shops; and
• Retail functions of mail and delivery stores.

Essential brick-and-mortar businesses that remain open to the public must abide by social distancing practices to the extent practicable while providing essential services. Social distancing practices include using reasonable efforts to keep customers at least 6 feet apart and frequently sanitizing commonly touched surfaces.

Restaurants, cafeterias, dining establishments and food courts can continue to operate during normal business hours, but are limited to offering takeout and/or food delivery only. On-site consumption of food or alcohol is prohibited.

According to guidance issued by the State of New Jersey, other businesses that are not specifically listed as essential, but may need limited staff on site to ensure continuity of essential operations include manufacturing, industrial, logistics, ports, heavy construction, shipping, food production, food delivery and other commercial operations.

Nonessential Businesses

Businesses that have been deemed nonessential and ordered closed as of March 21, 2020, include:

• Casino gaming floors, including retail sports wagering lounges, and casino concert and entertainment venues (online and mobile sports and casino gaming services may continue to be offered);
• Racetracks, including stabling facilities and retail sports wagering lounges (mobile sports wagering services may continue to be offered);
• Gyms and fitness centers and classes;
• Entertainment centers, including movie theaters, performing arts centers, other concert venues and nightclubs;
• All indoor portions of retail shopping malls, with limited exceptions for certain restaurants and other stores located within shopping malls that have their own external entrances open to the public;
• All places of public amusement, including amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions;
• Facilities where personal care services are performed, including cosmetology shops, barber shops, beauty salons, nail salons, electrology facilities, spas, massage parlors, tanning salons, tattoo parlors, and public and private social clubs (e.g., American Legion and Knights of Columbus). Health facilities that provide medically necessary or therapeutic services, consistent with Executive Order 109 (see below), are excluded; and
• All municipal, county and state public libraries, and all libraries and computer labs at public and private colleges and universities.

All public, private and parochial preschool programs and elementary and secondary schools are closed until further notice. All institutions for higher learning must cease in-person instruction.

If an entity believes it should qualify as “essential,” but it does not plainly fall into one of the essential business categories designated in the order, it may submit a request to the State Director of Emergency Management, who is the Superintendent of State Police. The Director has the discretion to make additions, amendments, clarifications, exceptions, and exclusions to the lists of essential and nonessential businesses.

Employers Must Provide Telework and Work-from-Home Arrangements, if Practicable

Under Executive Order 107, all businesses and nonprofits, whether closed or open to the public, must accommodate their workforce with telework or work-from-home arrangements, wherever practicable. The order clarifies that “telework” means “the practice of working from home or alternative locations closer to home through the use of technology that equips the individual to access necessary materials.”

While businesses and nonprofits are required to permit employees to telework or work from home (wherever practicable), the order recognizes that there may be a need for limited on-site staff to ensure that essential operations continue. In such circumstances, the business or nonprofit should make “best efforts” to reduce the number of on-site staff to the minimum number necessary to continue essential operations. The order provides examples of employees who need to be physically present at the worksite in order to perform their duties. The list appears to include employees of both essential and nonessential businesses, such as: law enforcement officers, firefighters and other first responders, cashiers or store clerks (likely for essential businesses or essential services only), construction workers, utility workers, repair workers, warehouse workers, lab researchers, information technology maintenance workers, janitorial and custodial staff and certain administrative staff.

Executive Order 107 Preempts Any County or Municipal Restriction

Governor Murphy also signed Executive Order 108 on March 21, 2020, which invalidated any county or municipal restriction that in any way conflicts with the provisions of Executive Order 107. Counties and municipalities may impose additional restrictions only with respect to parks and “online marketplaces for arranging or offering lodging.” As such, businesses and individuals should defer to Executive Order 107 rather than regulations implemented by their local governments.

Elective Medical and Dental Procedures to Be Suspended as of March 27, 2020

On March 23, 2020, Governor Murphy also signed Executive Order 109, which directs the suspension of all elective surgeries and elective “invasive procedures” performed on adults, whether medical or dental, effective at 5:00 p.m. on March 27, 2020. Any elective surgery or procedure that has been scheduled to occur after that time must be canceled or postponed indefinitely. Executive Order 109 applies to all medical and dental procedures that can be “delayed without undue risk to the current or future health of the patient as determined by the patient’s treating physician or dentist.” The administration of vaccines and “the full range of family planning services and procedures, including terminations of pregnancies,” are not suspended under Executive Order 109 and may continue.

Physicians and dentists who intend to perform surgeries or invasive procedures in their offices are ordered to consider the potential post-surgery stress or procedure complications that may be placed on local hospitals prior to performing any such operations and must coordinate any possible post-operation admissions with local hospitals prior to performing surgeries or invasive procedures. Hospitals and ambulatory surgery centers are further ordered to establish written guidelines to ensure compliance with Executive Order 109 and to provide a copy of those guidelines to the New Jersey Department of Health.

All businesses or nonhospital healthcare facilities—including but not limited to dental facilities, construction facilities, research facilities, office-based healthcare or veterinary practices, and institutions of higher learning—in possession of personal protective equipment (e.g., gloves, masks and gowns), ventilators, respirators, or anesthesia machines that are not required for the provision of critical healthcare services, are required to inventory their supplies and send that information to the state by 5:00 p.m. on Friday, March 27. The Office of Emergency Management will establish a process for affected entities to submit this information.

Violators Can Be Subject to Criminal Penalties

Any individual or entity that violates Executive Orders 107, 108 or 109 can be charged with a disorderly persons offense and may be subjected to imprisonment for up to six months, a fine of $1,000 or both.

What This Means for New Jersey Employers

Unless an employer qualifies as an essential retail business, it must close all brick-and-mortar locations within New Jersey, and any other locations that are subject to similar orders, until further notice. Employers must also explore potential telework or work-from-home options for their workforces, where appropriate. Telework and work-from-home arrangements can present unique issues for employers, particularly related to nonexempt employees working from home. Employers should consult with counsel when creating new teleworking or work-from-home arrangements, so policies clearly set employer expectations and ensure compliance with state and federal wage and hour laws.

Employers considering mass layoffs, plant closures, terminations of operations or transfers of operations are advised to consult with counsel to evaluate options, such as furloughs, and to discuss legal compliance with obligations under various employment laws, including the Worker Adjustment and Retraining Notification Act (WARN Act) and the Millville Dallas Airmotive Plant Job Loss Notification Act (NJ WARN Act) to the extent applicable.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help companies plan, respond to and address this fast-moving situation. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Kathleen O'Malley, Alison C. Morris, Danielle M. Dwyer, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

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