In Continued Effort to Flatten the Curve, Governor Murphy’s Executive Order 122 Places Restrictions on Non-Essential Construction

Last updated April 10, 2020

In light of the coronavirus pandemic, on April 8, 2020, Governor Murphy issued Executive Order No. 122 (“Order”), which imposes further safety requirements and restrictions on all businesses in New Jersey.

The primary focus of the Order is the halting of all non-essential construction across the State effective Friday, April 10th at 8 PM EST. However, the Order also imposes obligations on retail operations, manufacturers and any employer which has an employee who tests positive for COVID-19.

Essential vs. Non-Essential Construction

Under the Order, a wide range of residential and commercial construction will be temporarily suspended, while allowing only those construction projects deemed “essential” to continue. “Essential” construction work includes:

  1. Projects necessary for the delivery of health care services;
  2. Transportation and utility projects;
  3. Residential projects that are exclusively designated as affordable housing;
  4. Projects involving pre-K-12 schools and higher education facilities;
  5. Projects already underway involving individual single-family homes, or an individual apartment unit where an individual already resides, with a construction crew of five or fewer individuals;
  6. Projects already underway involving a residential unit for which a tenant or buyer has already entered into a legally binding agreement to occupy the unit by a certain date, and construction is necessary to ensure the unit’s availability by that date;
  7. Projects involving facilities at which any one or more of the following takes place: the manufacture, distribution, storage, or servicing of goods or products that are sold by online retail businesses or essential retail businesses;
  8. Projects involving data centers or facilities that are critical to a business’s ability to function;
  9. Projects necessary for the delivery of essential social services;
  10. Any project necessary to support law enforcement agencies or first responder units in their response to the COVID-19 emergency;
  11. Any project that is ordered or contracted for by Federal, State, county, or municipal government, or any project that must be completed to meet a deadline established by the Federal government;
  12. Any work on a non-essential construction project that is required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project; and
  13. Any emergency repairs necessary to ensure the health and safety of residents.

Further, the Order requires businesses engaged in “essential” construction projects, manufacturing and warehousing to take special safety precautions. Employers of businesses deemed “essential” should prohibit non-essential visitors from entering, and limit all meetings and work groups to fewer than ten individuals. Employees who remain on the site are required to wear cloth face coverings and gloves, at the expense of the business. Employees should also maintain a distance of six feet or more between one another, and the number of individuals who can access common areas must be restricted. When practical, work schedules and lunch breaks should be staggered and employees should limit the sharing of tools, equipment and machinery. Employers are also mandated to provide sanitization materials to keep such instruments disinfected. Every worksite must adhere to strict sanitation procedures for highly touched areas, and require that employees follow infection control practices such as regular hand washing as well as proper coughing and sneezing etiquette (“Infection Control Practices”).

Additional Safety Requirements for “Essential” Businesses

The Order additionally sets forth safety requirements for essential retail businesses permitted to maintain in-person operations. Such businesses must limit occupancy to fifty percent of their maximum capacity, and establish special hours of operation that permit exclusive access for high risk individuals. Each business must install a physical barrier between customers and cashiers/baggers where feasible, or take other measures to ensure six feet of distance between those individuals except at the moment of payment and/or exchange of goods. When possible, businesses should install contactless payment options and arrange for curbside pickup and/or delivery of goods. Businesses must display conspicuous signage at the entrances and throughout the store alerting staff and customers of the required six feet of physical distance. Check-out lines should demarcate six feet of spacing to demonstrate appropriate spacing for social distancing. All employees must be required to follow Infection Control Practices, and be provided with sufficient break time for repeated hand washing throughout the day. Sanitization materials should be provided throughout the facility, and highly touched areas must be frequently sanitized. All employees and customers must be required to wear cloth face coverings and gloves. Employers are required to provide employees with such face coverings and gloves.

In the Order, Governor Murphy also ordered that employers implement policies to immediately separate and send home workers who appear to have symptoms consistent with COVID-19 and to promptly notify co-workers of the potential exposure to COVID-19 at the worksite.  As recognized by Governor Murphy in this Order, these issues implicate confidentiality concerns and there are specific requirements imposed on employers by federal and state law. CSG has previously issued alerts regarding HIPAA applicability, as well as privacy laws and duty to warn in these instances. The Executive Order also requires employers to ensure that the worksite is routinely disinfected pursuant to the guidelines established by the CDC.

Businesses authorized to maintain in-person operations pursuant to Executive Order No. 107 and subsequent Administrative Orders, including owners of buildings used for commercial, industrial or other enterprises, are required to implement special cleaning protocols. Such businesses must routinely clean and disinfect highly touched areas in accordance with CDC guidelines, maintain cleaning procedures in all other areas of the facility, and ensure that the facility has a sufficient number of employees to effectively disinfect such areas in order to ensures the safety of occupants, visitors and employees.

The most recent Order is yet another example of the necessary measures taken by the Governor’s Office in the battle to curb the spread of COVID-19.

For additional information pertaining to the coronavirus outbreak, please visit CSG’s COVID-19 Resource Center.

This publication contains general information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Attorney Advertising. Prior results do not guarantee a similar outcome.

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