By the Conn Maciel Carey COVID-19 Task Force

Following in the wake of Virginia OSHA and Michigan OSHA issuing enforceable COVID-19 emergency temporary standards, and as Oregon OSHA and Cal/OSHA ready their own COVID-19 emergency standards this month, New Jersey’s governor, Phil Murphy, issued Executive Order No. 192 (“EO 192”) on October 28, 2020, imposing a series of requirements on Garden State employers.

Whereas Virginia, Michigan, California, and Oregon are all State OSH Plan States, meaning they have state agencies that enforce workplace safety and health standards, New Jersey employers fall within the jurisdiction of federal OSHA, and as a result, enforcement of EO 192 will fall to New Jersey state agencies that do not normally focus on occupational safety and health issues.  In a press release announcing EO 192, Governor Murphy explained why he issued the Order despite federal OSHA’s primary jurisdiction over workplace safety in New Jersey.  Governor Murphy explained:

“A more significant portion of the State’s workforce has returned to in-person work, and as [New Jersey’s] economy continues to gradually reopen, it is necessary to ensure broad application of relevant health and safety standards to protect workers across all industries.”

Governor Murphy also pointed to the absence of a federal COVID-19 standard as another reason for the need for the EO in New Jersey:

“the federal government has failed to provide all workers the proper standards and protections that they deserve. Today’s executive order closes that gap to help ensure the health and safety of our workforce during this unprecedented time….  Today’s executive order lays out the enforceable standards we need, ensuring the safety of our workers, employers and customers. I will continue to fight for a federal OSHA emergency temporary standard, but where the Trump Administration and Mitch McConnell have dropped the ball, our state has stepped up.”

In order to comply with EO 192, New Jersey employers must:

• Continue to focus on ensuring 6 feet of distance between workers whenever feasible. Where the nature of an employee’s work or the work area does not allow for 6 feet of distance to be maintained at all times, employers must ensure that each such employee wears a mask and install physical barriers between workstations wherever possible.
• Require employees, customers, visitors, and other individuals entering the worksite to wear cloth or disposable face masks while on the premises. Masks must be provided to employees at no cost.   Employees may remove their masks when at their workstations if they are at least 6 feet from anyone else, or when alone in a walled office.  Notably, EO 192 provides that employers may deny entry to customers who refuse to wear a mask but does not mandate denial of service as states such as Michigan and Oregon have required.
• Facilitate and ensure sanitizing and disinfecting of the workplace. Employers must provide sanitization materials from EPA List N, ensure that employees practice good hygiene and have ample time to wash their hands, routinely clean and disinfect high-touch areas and otherwise follow CDC guidance regarding enhanced regular cleaning procedures.  EO 192 also requires employers to clean and disinfect the workplace consistent with CDC guidelines after an employee discloses a positive test result.
• Prevent sick employees from entering the workplace and immediately remove those who become sick while at work. Under EO 192, employers appear to have discretion to adopt and implement measures that fit their operations, provided they are done every day and are consistent with CDC guidance on the subject.  Minimally prescriptive, EO 192 simply mandates that employers conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires.  Employees who fall ill while in the workplace must be immediately separated and sent home.
• Notify employees who have been in contact with a confirmed positive coworker. EO 192 states that New Jersey employers must promptly notify all employees of any known exposure to COVID-19 at the worksite.  While other sections of EO 192 explicitly reference CDC guidance, this section does not, leaving open the question of whether employers should notify only those who have had as a “close contact” as defined by the CDC or if they must inform individuals who had any contact no matter how brief with the infected person.  It stands to reason, given the focus on CDC guidance in other sections, that adhering to CDC recommendations should be sufficient.

The repeated references to CDC guidance are noteworthy because it is clear that New Jersey employers will be expected to keep track of the oft-changing recommendations issued by CDC and modify their protocols accordingly.  Indeed, EO 192 also directs New Jersey employers to continue to follow guidelines and directives issued by the NJ Department of Health and fed OSHA.  This is similar to the approach undertaken by Virginia OSHA in their first-in-the-nation emergency temporary standard.

Although the means by which New Jersey will investigate and enforce these requirements is not entirely clear, EO 192 directs the Commissioner of the Department of Labor and Workforce Development (“DOLWD”), to work with the Commissioner of the Department of Health (“DOH”) to set-up an intake mechanism to receive complaints from individuals working in the State that are subject to the COVID-19 specific health and safety protocols outlined in this Order.  EO 192 further explains that Commissioner of the DOLWD shall, where applicable, coordinate with relevant licensing and/or regulating agencies or refer complaints to such agencies.  While DOLWHD will be primarily responsible for investigating complaints, EO 192 directs the DOH to enter into a memorandum of understanding with the DOLWD to provide support and assistance for these investigative efforts.  Employers that fail to comply will be subject to fine, among other actions, including closure.  At the same time, however, EO 192 makes clear that it does not create a private right of action.

Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.