Seyfarth Synopsis: On May 24 and 26, 2021, New Jersey Governor Murphy signed Executive Order 242 and Executive Order 243 mapping out what can only be called the most confusing approach to science, masking, and other COVID-19 guidelines enacted by any state. To be sure, the new restrictions indicate a significantly less restrictive approach from New Jersey’s full lockdown. However, the remaining restrictions create a most unusual three-category patchwork of regulations, especially around masking. In this regard, the rules generally fall into the following parameters: One, in public facilities (bars, restaurants, retail shops, and most other indoor places regularly accessible to the public) there are no masking or distancing requirements for patrons or workers. Two, persons working at or going to schools (other than higher education schools), transportation hubs, health care facilities, and facilities where state employees work require masking and distancing at all times. This is the case even though all such persons may go to a bar, restaurant, retail shop, or other public location without a mask or distancing. Three, employers operating non-public workplaces (like warehouses and offices) will no longer have to require employees to wear face masks or social distance at the worksite, but only if the employee provides proof of full vaccination status. Here, too, there is a further exception that any visitors to such locations need not wear masks, regardless of vaccination status. And, confusingly, all persons who work at or visit such locations can go mask and distancing free when attending a public event at a location covered by the first category above. Importantly, both Orders specify that in settings where masks and distancing are no longer required, employers and/or those responsible for the site have the authority to establish their own masking and distancing rules. Additionally, municipalities and counties are authorized to enact their own stricter masking and distancing rules. Finally, the State of New Jersey is cautioning all businesses and persons to avoid harassing or bullying anyone that wants to wear a mask.
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This Alert attempts to sort through New Jersey’s newly issued Executive Order 242 and Executive Order 243. Most clearly, these Orders indicate a lessening of the state’s COVID-19 capacity, spacing, teleworking, and masking regulations. We fully recognize from 14 months of pandemic counselling that for our clients and the citizenry, in general, there is no “one size fits all” approach that makes everyone comfortable. Having said that, Governor Murphy has enacted, through his patchwork of Executive Orders, a system of restrictions that, at a minimum, can only be categorized as inconsistent. These inconsistences may reflect the advocacy of certain politically influential constituencies, including from teacher and state employee unions that have been seeking greater restrictions throughout 2020 and 2021. One could certainly argue that science is not dictating all the differences detailed below. On a positive front, what is left for employers of New Jersey is the ability to make some of their own choices about what is best for their businesses. If an employer chooses to require greater masking and distancing than the state, many may do so free from regulatory challenge. Still, there are newly established minimums that apply in multiple settings we detail below. Additionally, there is for everyone the freedom to go mask and social distancing free (for those that choose to do so) in many settings (with or without proof of vaccine).
EO 242 Generally Provides That Masks Are No Longer Required In Indoor Public Spaces
Effective Friday, May 28, 2021, individuals in indoor public spaces in New Jersey are not required to wear masks, regardless of their ability to maintain six feet of distance from other individuals or groups. In accordance with CDC recommendations, the state says that individuals who are not fully vaccinated should continue to wear masks in indoor public spaces. While statewide mask requirements in these settings have been lifted, employers or entities responsible for overseeing any public space are free to impose stricter requirements regarding mask-wearing in indoor settings for employees, customers, guests, and other individuals, unless conflicting with another law. In addition, such employers and entities may not restrict individuals from wearing masks in those settings and cannot in any way penalize or retaliate against individuals who seek to wear a mask.
There are a number of places this new public mask freedom does not apply and where indoor masking remains:
Schools: Child care centers, other child care facilities, youth summer camps, and public, private and parochial preschool program premises and elementary and secondary schools, including charter and renaissance schools, still require masking.
Indoor Non-Public Worksites: Still maintain mask and social distancing requirements until June 4.
EO 243’s More Gradual Lifting of Mask Requirements for Indoor Non-Public Worksites
From May 28 until June 4, employees must continue to wear face coverings in indoor worksites that do not open their indoor spaces to the public for purposes of the sale of goods, attendance at an event or activity, or the provision of services. During this period, the preexisting masking requirement exceptions continue to apply for such indoor workplaces, such as when employees are at distanced workstations or in their own offices, as provided in Executive Order 192; and individuals must continue to maintain six feet of distance from others to the maximum extent possible, except in the circumstances described in that Order.
Under Executive Order 243, effective June 4, employers will no longer be mandated to require employees to wear face masks or social distance at their indoor non-public worksites where the employee provides proof that he or she is fully vaccinated, as defined by the CDC, and in accordance with federal and state law. Where an employer is unable to determine the individual’s vaccination status or the individual is not fully vaccinated (or does not want to provide information), employers must continue to require those employees to wear masks and practice social distancing in indoor spaces, subject to the same exceptions for indoor workplace noted above, and as provided in Executive Order 192. Similar to indoor public spaces, employers are free to impose stricter requirements regarding mask-wearing in indoor settings for employees, unless conflicting with another law. In addition, employers may not restrict individuals from wearing masks and cannot in any way penalize or retaliate against individuals who seek to wear a mask.
With respect to customers, visitors, and other authorized individuals who may enter an indoor non-public worksite, employers may allow such individuals to enter the worksite without requiring use of a mask or adherence to social distancing, regardless of their vaccination status. Employers may again impose stricter requirements, and establish a policy that requires customers, visitors, and similar individuals entering a worksite to wear a mask and/or social distance, but such policy on masking must comply with the requirements of Paragraph 1(b)(ii) of Executive Order 192. And again, employers cannot restrict individuals from wearing masks or in any way penalize or retaliate against individuals who wear a mask.
Executive Order 243 further clarifies that other requirements on employers outlined in Executive Order 192, including the requirement to conduct daily health checks, continue to apply.
Additional Relief for Food and Beverage Establishments
Effective May 28, Executive Order 242 also provides additional relief for food and beverage establishments as follows:
Capacity limits and spacing requirements have been lifted.
Establishments are no longer required to seat individuals or groups of individuals six feet apart at tables or at indoor bar areas.
Establishments are permitted to allow patrons to place orders when not seated and to serve patrons who are not seated, and patrons may consume food or beverages while standing.
Establishments must continue to ensure all areas designated for food and/or beverage consumption are in conformance with applicable local, state, and federal regulations, and must continue to abide by all other current health and safety standards issued by the Commissioner of the Department of Health (“DOH”) on indoor and outdoor dining.
The lifting of these requirements promises to ease the tremendous burdens placed on food and beverage businesses, while at the same time allowing for employer-based rules in a business’ discretion.
Full Occupancy for Other Businesses
In addition, effective May 28, the following businesses may now operate at full capacity, with no occupancy limits based on the ability of patrons to remain six feet apart:
“Health clubs,” including gyms, fitness centers, amusement parks, and water parks, that have been allowed to reopen under Executive Order 181;
Recreational and entertainment businesses under Executive Order 157, including pools, amusement parks, and water parks;
Casinos, including casino gaming floors and retail sports wagering lounges; and
Executive Order 242 further notes that these businesses remain subject to any applicable directive, order, and/or guidance document issued by the Commissioner of the DOH or any other state agency. Here, too, the state has placed trust in these businesses to set their own masking and distancing rules.
Indoor Spacing and Other Miscellaneous Requirements
Executive Order 242 also provides the following updates, effective May 28, with exceptions:
All attendees at indoor gatherings are no longer required to remain six feet apart from other attendees, with certain exceptions:
Exception for Indoor Non-Public Worksites: Where an indoor gathering occurs in a non-public workplace (like an office or warehouse) the facility must continue social distancing for those who are not fully vaccinated.
Exception for Indoor Sports and Entertainment Venues: Such venues with fixed seating capacity of 1,000 or greater may permit a number of patrons and/or members of the public totaling up to 30% of the stated maximum capacity of any room, without limiting occupancy to a number that ensures that all patrons or groups of patrons entering the facility together can remain six feet apart. Effective June 4, this limit is lifted as well.
Exception for Health Care Settings: Masking and social distancing requirements remain at indoor (and outdoor) spaces in health care settings, including but not limited to long-term care facilities, home health care settings, and office-based health care settings, correctional facilities, homeless shelters.
Exception for Public Transportation: Masking or social distancing requirements remain on planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in transportation hubs such as airports and stations.
Degree-granting public and private institutions of higher education are not required to implement policies to provide for social distancing in classrooms, residence halls, restrooms, and other areas across campus.
Exception for All Other Schools: Social distancing requirements for child care centers, other child care facilities, youth summer camps, and public, private, and parochial preschool program premises and elementary and secondary schools, including charter and renaissance schools, remain in effect per Executive Orders 149, 175, and 237, and any applicable standards issued by the Commissioner of the DOH.
No social distancing for attendees at outdoor gatherings, including but not limited to religious services or celebrations, political activities, weddings, funerals, memorial services, commercial gatherings, gatherings in private residences, performances at outdoor entertainment centers, catered events, and athletic practices and competitions.
Exception for Health Care Settings: As referenced above, masking and social distancing requirements remain at outdoor spaces in certain health care settings, including but not limited to long-term care facilities, home health care settings, office-based health care settings, correctional facilities, and homeless shelters.
Restrictions on public and private beaches, boardwalks, lakes, and lakeshores have been rescinded.
Indoor and outdoor dance floors are no longer subject to distancing requirements.
Valet parking and communal play areas are permitted to open at indoor malls.
In addition, on June 4, the following updates will go into effect:
The numerical limit on indoor gatherings will be rescinded. As a result, there will be no limits applying to indoor gatherings.
Full capacities will be allowed at outdoor sports and entertainment venues, including concert venues and stadiums, with fixed seating capacity of 1,000 or greater, as noted above.
The requirements on businesses and non-profits to accommodate their workforce, wherever practicable, for telework or work-from-home arrangements, as provided in Paragraphs 10 and 11 of Executive Order 107, will be rescinded.
Municipalities and Counties May Impose Additional Restrictions
As in prior Orders, municipalities, counties, or any other agencies or political subdivisions of the state may not enact or enforce any order, rule, regulation, ordinance, or resolution which will or might in any way conflict with any of the provisions of Executive Order 242, or which will or might in any way interfere with or impede its achievement. However, as a departure from prior Orders, Executive Order 242 states that municipalities and counties may impose additional restrictions, in response to COVID-19, regarding mask requirements for individuals in indoor public spaces. The reasoning, as stated in the Order, is that there has been considerable variation in vaccination rates among different localities in New Jersey, such that it would be appropriate to allow counties and municipalities to retain indoor mask mandates if they so choose.
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We expect that the terms of these Orders will be discussed, debated, and modified in the coming days and weeks. It seems that as things progress, most businesses ultimately will be permitted to make their own masking and distancing rules in New Jersey and the state will continue to reduce restrictions if COVID-19 indicators continue to decline. Please call on your favorite Seyfarth attorney with any questions you may have.