On March 21, 2020, New Jersey Governor Murphy issued a statewide “Stay-At-Home” Executive Order (EO 107), available here, directing all residents to stay at home and mandating the closure of all “non-essential” retail businesses. Governor Murphy also signed Executive Order 108 (EO 108), available here, which invalidates any county or municipal restriction that conflicts with any provision of EO 107. Both Orders became effective Saturday, March 21, 2020 at 9:00 p.m. and will remain in effect until revoked or modified by the Governor. Key provisions are explained below.
Stay-At-Home Order for New Jersey Residents
EO 107 directs all New Jersey residents to remain at home or at their place of residence unless they are doing the following:
- Obtaining goods or services from “essential retail businesses” (as described below);
- Obtaining takeout food or beverages from restaurants, other dining establishments, or food courts;
- Seeking medical attention, essential social services, or assistance from law enforcement or emergency services;
- Visiting family or other individuals with whom the resident has a close personal relationship, such as those for whom the individual is a caretaker or romantic partner;
- Reporting to, or performing, their job;
- Walking, running, operating a wheelchair, or engaging in outdoor activities with immediate family members, caretakers, household members, or romantic partners;
- Leaving home for an educational, religious, or political reason;
- Leaving home because of a reasonable fear for his or her health or safety; or
- Leaving home at the direction of law enforcement or other government agency.
EO 107 also requires that, when in public, individuals must practice social distancing and stay six feet apart whenever practicable, excluding immediate family members, caretakers, household members, or romantic partners. Moreover, individuals who have to travel should use public transportation only if they have no other feasible choice and should abide by best social distancing practices when doing so. Gatherings of individuals, such as parties, celebrations, or other social events, are cancelled.
Closure of “Non-Essential” Retail Businesses
EO 107 directs the closure of the brick-and-mortar premises of all non-essential retail businesses. It defines the following as “Essential Retail Businesses” which may remain open, subject to certain restrictions (discussed below):
- Grocery stores, farmer’s markets and farms that sell directly to customers, and other food stores, including retailers that offer assortments of food comparable to that of 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 five 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.
Restrictions on “Essential” Retail Businesses that May Remain Open
Wherever practicable, essential retail businesses must provide pickup services outside or adjacent to their stores for goods ordered in advance online or by phone. Additionally, any essential retail business whose brick-and-mortar premises remain open to the public must abide by social distancing practices to the extent practicable while providing essential services.
Restaurants, Dining Establishments and Bars
All restaurants, dining establishments and food courts, with our without a liquor license, and all bars and other holders of a liquor license with retail consumption privileges are permitted to operate during their normal business hours, but are limited to offering only food delivery and/or take-out services.
Businesses that Must Remain Closed
All recreational and entertainment businesses, including the following, must remain closed as long as EO 107 remains in effect:
- Casino gaming floors;
- Racetracks, including stabling facilities and retail sports wagering lounges;
- Gyms and fitness centers and classes;
- Entertainment centers, including movie theaters, concert venues, and nightclubs;
- Indoor portions of retail shopping malls;
- All places of public amusements, whether indoors or outdoors;
- Facilities where personal care services are performed that, by their very nature result in noncompliance with social distancing guidelines, such as cosmetology shops; barber shops; beauty salons; and nail salons; but excluding any health facilities that provide medically necessary or therapeutic services; and
- All municipal, county, and State public libraries and all libraries and computer labs at public and private colleges and universities.
Remote Workforce Requirements for All Businesses
EO 107 provides that all businesses or non-profits in the State, whether closed or open to the public, must accommodate their workforce, wherever practicable, with telework or work-from-home arrangements. To the extent employees cannot perform their functions remotely, best efforts should be made to reduce staff on site to the minimal number necessary to ensure that essential operations can continue. EO 107 provides a number of examples of employees who need to be physically present at their worksite in order to perform their duties, including the following:
- Law enforcement officers;
- Fire fighters, and other first responders;
- Cashiers or store clerks;
- Construction workers;
- Utility workers;
- Repair workers;
- Warehouse workers;
- Lab researchers;
- Information technology maintenance workers;
- Janitorial and custodial staff; and
- Certain administrative staff.
Violations of these Orders are punishable under provisions of New Jersey Statutes that allow imprisonment for a term not to exceed 6 months and/or a fine of up to $1,000.
Additional guidance on both Orders can be found here.
Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace. Stay informed on the legal implications with Sheppard Mullin’s Coronavirus (COVID-19) page.
As you are aware, things are changing quickly and there is no clear-cut authority or bright line rules. This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand. This article does not address the potential impact of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.
*Jamie Moelis is a law clerk in the New York office.
*This alert is provided for information purposes only and does not constitute legal advice and is not intended to form an attorney client relationship. Please contact your Sheppard Mullin attorney contact for additional information.*