The following guidance is being provided by OlenderFeldman LLP based upon Executive Order 107 issued by Governor Phil Murphy on March 21, 2020 and the follow on official guidance provided by the State of New Jersey through the Covid19.nj.gov website. This information is subject to change based upon revised guidance that may follow from the Governor’s office and all clients should refer to the aforementioned website for update information.
This Executive Order goes into effect tonight at 9:00 pm.
In summary, the Governor has issued directives for New Jersey businesses based upon the nature of the business, with the closure mandates being principally focused on the retail industry. The Executive Order categorizes businesses in one of four general categories, with specific treatment for each category as discussed and defined below: (1) non-essential retail businesses, which are required to close; (2) essential retail businesses, which are permitted to remain open; (3) non-retail business capable of “telework” and permitted to have non-telework employees remain at the workplace; and (4) non-retail business incapable of “telework” and permitted to have employees remain at the workplace.
- Non-essential retail businesses. Examples of non-essential retail businesses subject to this mandate that must close to the public include:
- Entertainment - recreational and entertainment businesses such as casinos, racetracks, sports lounges, gyms and fitness centers, entertainment centers (movie theatres, performing arts centers, concert venues and nightclubs), indoor and outdoor amusement parks, water parks, zoos, aquariums, arcades, family & children play centers, bowling alleys;
- Retail - indoor portions of retail shopping malls and restaurants/stores located inside shopping malls*;
- Personal Care - barber and cosmetology shops, beauty/nail/hair salons, spas (including day spas and medical spas performing solely elective and cosmetic procedures), massage parlors, tanning salons and tattoo parlors;
- Education – public, private and religious schools and programs, including preschool through high school programs and classes. Charter and renaissance schools are included in this mandate. Colleges and institutions of higher education are also included in this mandate.
- Essential retail businesses. These businesses are exempt from this Order and can continue to operate in the ordinary course and include:
- Certain Retail Operations – grocery stores, farms (that sell directly to customers) and farmer’s markets, convenience stores (i.e. 7/11, Wawa), gas stations and retail stores within a gas station, hardware and home improvement stores, banks and other financial institutions (retail function only), laundromats and dry-cleaning services, stores that sell supplies to children under the age of 5 years old, pet stores, liquor stores, printing/office supply stores, mail & delivery stores, car dealerships (auto maintenance and repair only) and auto mechanic shops**;
- Drugs & Medicine – pharmacies, medical marijuana dispensaries, medical supply stores. Medical facilities may continue to operate. Medical facilities include any facility where a sick or injured person is given care or treatment, such as: doctor’s offices, hospitals, dentist offices, long-term care facilities, and other medical offices;
- Restaurants and Dining Establishments – all dining establishments including restaurants, cafeterias, dining establishments and food courts (with or without a liquor license) and bars, are permitted to operate during normal business hours but are limited to food delivery and/or take-out services only.
Any New Jersey retail business not listed above may contact the State Director of Emergency Management, who is the Superintendent of State Police, to be included as an essential retail business.
- Non-retail businesses capable of “telework”. With respect to all non-retail New Jersey businesses, all businesses in the State must accommodate employees, where practicable, for “telework” or work-from-home arrangements. The mandate defines “telework” as the practice of working from home or alternative locations closer to home through the use of technology that allows the employee access to necessary work materials. Any employees that cannot telework due to the nature of their position or the requirements of the business may continue to work on-site at the workplace, provided that such employees must be kept to the minimum necessary to enable the business to operate.
- Non-retail businesses that are incapable of “telework” arrangements. Any non-retail businesses that are incapable of telework where the typical employee must be physically present to conduct business are permitted to operate with the minimal number of on-site employees necessary to ensure that essential operations of the business continue.
Examples of the types of employees recognized by the Order who must be physically present include cashiers or store clerks, construction workers, utility workers, repair workers, warehouse workers, lab researchers, IT maintenance workers, janitorial and custodial staff, and certain administrative staff. Note that the follow-on guidance provided by the Governor’s office on the Covid19.nj.gov website subsequent to the issuance of the Executive Order indicates that manufacturing and distribution businesses (including industrial, logistics, ports, heavy construction, shipping, food production, food delivery, and other commercial operations) are entitled to continue ordinary business operations either on a telework basis or as set forth above in this section. Also note that the order does not further define the minimal number, but practical judgment would suggest it should be the number of employees necessary to keep the business operating in the ordinary course.
The Governor’s Office also provided follow on guidance that employees reporting to work are permitted to travel to and from their place of business but that businesses still allowed to operate despite the Executive Offer should give each employee a letter to have with them in their automobiles indicating that the employee works in an industry permitted to continue operations.
Penalties – Businesses that violate this Executive Order as well as individuals who knowingly aid and abet said violation are subject to criminal prosecution for disorderly conduct which includes imprisonment of up to 6 months or fines of up to $1,000 per violation, or both.
*Restaurants located within shopping malls that maintain their own external entrance(s) directly open to the public may remain open for takeout and delivery food only.
**Essential retail businesses are required to provide, whenever practicable, pick-up services outside or adjacent to the physical store for goods ordered online or by telephone.