New Jersey Governor Phil Murphy has signed Executive Order 150, which furthers efforts to reopen non-essential businesses closed due to the coronavirus (COVID-19) pandemic. Starting June 15, 2020, non-essential retail businesses can reopen physically to customers and outdoor dining and beverage services may resume.
Requirements on Businesses Reopening in New Jersey
On-site non-essential retail business and in-house restaurant services have been prohibited since March 21, 2020. While restrictions on these businesses will loosen on June 15, businesses must comply with significant requirements to foster social distancing and lessen the risk of COVID-19 transmission. Non-essential retail businesses and dining services (for outdoor areas only) will be subject to a common set of requirements as well as industry-specific additional requirements if they choose to reopen.
Both non-essential retail establishments and dining establishments (with outdoor services) must:
- Provide employees with and require them to wear cloth face coverings and gloves;
- Require customers to wear a cloth face covering inside the premises;
- Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to employees and customers;
- Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
- Provide employees break time for repeated handwashing throughout the workday;
- Require frequent sanitization of high-touch areas such as restrooms, credit card machines, keypads, counters, and shopping carts;
- Place conspicuous signage at entrances and throughout the establishment alerting employees and customers to the required 6 feet of physical distance;
- Demarcate 6 feet of spacing in lines and waiting areas to demonstrate appropriate spacing for social distancing;
- Ensure 6 feet of physical distancing between employees and customers, except at the moment of payment and/or when employees are servicing tables;
- Install physical barriers at cash registers, bars, host stands, and other areas where maintaining physical distance of 6 feet is difficult;
- Immediately separate and send home workers who appear to have symptoms consistent with COVID-19; and
- Promptly notify workers of any known exposure to COVID-19 at the worksite, and clean and disinfect the worksite in accordance with CDC guidelines.
Additional Requirements for Brick-and-Mortar Non-Essential Retail Businesses
Since May 18, brick-and-mortar non-essential retail businesses have been permitted to reopen for curbside pickup only. Starting June 15, those businesses may physically reopen to customers, but must comply with the same infection control and social distancing requirements imposed on essential retail businesses.
In addition to the above requirements, retail businesses must:
- Limit occupancy to 50% of the maximum store capacity;
- Require workers to wear gloves when in contact with customers or goods;
- Where feasible, they must also:
- Establish hours of operation that permit access solely to high-risk individuals; and
- Arrange for contactless pay options, pickup, and/or delivery of goods.
Additional Requirements for Outdoor Dining Establishments
Also beginning June 15, food and beverage establishments (restaurants, cafeterias, dining establishments, food courts, bars, and other holders of a liquor license with retail consumption privileges) can offer in-person service in outdoor areas. These establishments must comply with a number of requirements.
In addition to the above requirements, food and beverage establishments must:
- Ensure all areas designated for food or beverage consumption conform with applicable local, state, and federal regulations;
- Limit capacity to ensure all customers can remain 6 feet apart from all other customers at all times, except individuals sharing a table;
- Ensure that tables for groups are 6 feet apart in all directions and that individual seats in any shared area, such as an outdoor bar area, are also 6 feet apart in all directions;
- Prohibit customers from entering the establishment’s indoor premises, except to walk through for access to the outdoor area or use the restroom; and
- Prohibit smoking in any outdoor areas designated for food or beverage consumption (this requirement will automatically sunset once dining indoors is permitted).
Food and beverage establishments must also comply with New Jersey Department of Health directives, which impose the following requirements:
- Obtain required municipal approvals and permits before offering food and/or beverage consumption in outdoor areas;
- Post signage at the entrance stating that no one with a fever or symptoms of COVID-19 should enter the establishment;
- Limit seating to a maximum of eight customers per table and arrange seating to achieve a minimum distance of 6 feet between parties;
- Rope off or otherwise mark tables, chairs, and bar stools that cannot be used;
- Eliminate self-service food or drink options such as buffets, salad bars, and drink stations;
- Disinfect all tables, chairs, and any other shared items (menus, condiments, pens) after each use; and
- Have an inclement weather policy that, if triggered, would require the establishment to adhere to Executive Order No. 125 and offer takeout or delivery service only.
- For employees:
- Require employees to wash and/or sanitize their hands when entering the establishment;
- Conduct daily health checks (e.g. temperature screening and/or symptom checking) of employees safely and respectfully, and in accordance with applicable privacy laws and regulations; and
- Require employees to wear gloves when in contact with customers and when handing prepared foods or serving items to customers.
- For customers:
- Inform customers that they must adhere to safety measures such as social distancing, wearing face coverings when they are away from their table or inside the premises, and hygiene practices;
- Encourage reservations to control customer traffic/volume;
- Require customers to provide a phone number if making a reservation to facilitate contact tracing;
- Recommend customers remain in their cars or away from the establishment while waiting for a table if outdoor wait areas cannot accommodate social distancing;
- Alert customers via calls/texts to limit touching and use of shared objects such as pagers/buzzers;
- Encourage the use of digital menus;
- Decline entry to the indoor portion of the establishment to a customer who is not wearing a face covering; and
- Provide a hand sanitizer station for customers.
What Should New Jersey Employers Do Now?
As businesses begin to ramp-up, employers should plan for anything but business as usual. Social distancing and infection control measures remain paramount for employee and customer safety. Businesses that were forced to shut down brick-and-mortar locations should consider whether and when they can resume operations compliant with Executive Order 150. A return to work for employees will require changes to normal practices that may include reinforcing good hygiene tips, frequent cleaning, staggered schedules, and additional measures to distance customers.
Return to Work Resources
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
August W. Heckman, III
Terry D. Johnson
Thomas A. Linthorst
Sean P. Lynch
Joseph A. Nuccio
Richard G. Rosenblatt
Michelle Seldin Silverman