In response to the COVID-19 pandemic, New Jersey Governor Phil Murphy issued a pair of executive orders on Saturday, March 21. The first order, Executive Order No. 107,1 requires all businesses and nonprofits in the state to accommodate telework or work-from-home arrangements wherever practicable, and, where functions cannot be performed remotely, to “reduce staff on site to the minimal number necessary to ensure that essential operations can continue.” It further requires recreational and entertainment businesses and the brick-and-mortar premises of nonessential retail businesses to close as long as the order remains in effect. Essential retail businesses are allowed to remain open during normal business hours but must employ social distancing practices. The order took effect Saturday, March 21, 2020, at 9:00 p.m. The second order, Executive Order No. 108,2 repeals and prohibits any conflicting orders from municipalities or local officials.
New Jersey joins a growing number of states around the country imposing workplace restrictions. A day earlier, the governors of New York and Connecticut ordered “100% closure” of nonessential businesses statewide as confirmed cases of the COVID-19 virus have spiked over the past several days in the tri-state area. Murphy’s latest orders follow from his Executive Order No. 103, issued on March 9, 2020, in which he declared a State of Emergency under state law and a Public Health Emergency pursuant to New Jersey’s Emergency Health Powers Act, N.J.S.A. 26:13-1, et seq.
A. Executive Order No. 107
Executive Order No. 107 supersedes the governor’s earlier Executive Order No. 104. As noted above, it directs certain recreational, entertainment and nonessential retail businesses to close their premises to the public. Other businesses and nonprofits can remain open, although with a reduced on-site workforce. Such businesses or nonprofits must arrange for telework or work-from-home “wherever practicable.” To the extent employees cannot perform their jobs remotely, the order allows these employers to staff the “minimum number [of employees] necessary” to perform “essential operations” on-site.
Essential operations are not defined, but the order and additional guidance provided by the New Jersey Department of State3 suggest that the operation of data centers and back-office functions qualifies. The order itself includes a nonexclusive list of employees who need to be physically present at the workplace in order to perform their duties:
- “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.”
Brick-and mortar retail businesses must close their stores to the public unless they qualify as “essential.” Essential retail businesses include grocery stores, pharmacies, medical supply stores, gas stations, convenience stores, hardware and home improvement stores, laundry services, pet stores, liquor stores, car dealerships, office supply and printing shops, and mail and delivery stores. Retail banks and financial institutions may also continue to operate. Restaurants, cafeterias and food courts can operate during normal business hours but must only offer food delivery or take-out services. Even these essential retail businesses must practice social distancing to the extent possible, including undertaking “reasonable efforts to keep customers six feet apart and frequent use of sanitizing products on common surfaces.”
The governor’s order, as supplemented by the state’s additional guidance, gives the director of Emergency Management, who is also the superintendent of the State Police, the authority to add to or modify the list of essential retail businesses, including by granting exemptions to otherwise nonexempt businesses that the director deems essential.4
B. Executive Order No. 108
Executive Order No. 108 repeals conflicting orders from municipalities or local officials and forbids municipalities and local officials from enacting or enforcing any rule that would conflict or impede the governor’s orders, with the exception of rules addressing online marketplaces for arranging or offering lodging and municipal or county parks. In response to an earlier request from the governor, the county executive of Bergen County, James Tedesco, had already rescinded the executive order he previously issued.
Executive Order No. 107 explicitly references the provisions of New Jersey law that impose penalties for individuals who violate or knowingly aid or abet a violation of emergency executive orders. Those penalties may include up to six months imprisonment and/or a fine of up to $1,000. See N.J.S.A., App. A:9-49, 9-50.