Underscoring the paramount need to put in place comprehensive health and safety standards designed to mitigate the spread of the COVID-19 virus in our state, New Jersey Governor Phil Murphy recently issued Executive Order No. 192, requiring employers with employees physically present at worksites to adhere to strict COVID-19 safety requirements. Executive Order No. 192 provides in part:
1. Effective at 6:00 a.m. on Thursday, November 5, 2020, every business, non-profit and governmental or educational entity (hereinafter collectively referred to as “employers” or “employer”) that requires or permits its workforce to be physically present at a worksite to perform work is required to abide by the following requirements to protect employees, customers and all others who come into physical contact with its operations:
a. Require that individuals at the worksite maintain at least 6 feet of distance from one another to the maximum extent possible, including but not limited to during worksite meetings, orientations and similar activities, in common areas such as restrooms and break rooms, and when individuals are entering and exiting the workplace. Where the nature of an employee’s work or the work area does not allow for 6 feet of distance maintained at all times, employers shall ensure that each such employee wears a mask and shall install physical barriers between workstations wherever possible.
b. Require employees, customers, visitors and other individuals entering the worksite to wear cloth or disposable face masks while on the premises, except where the individual is under two years of age or where it is impracticable for an individual to wear a face mask, such as when the individual is eating or drinking or where a service being provided by the employer cannot be performed on an individual who is wearing a mask;
i. Masking requirements specific to employees:
- Employers may permit employees to remove face masks when the employees are situated at their workstations and are more than 6 feet from other individuals at the workplace, or when an individual is alone in a walled office.
- Employers must make available, at their expense, face masks to their employees.
- Employers may deny entry to the worksite to any employee who declines to wear a face mask, except when doing so would violate state or federal law. Where an employee cannot wear a face mask because of a disability, an employer may, consistent with the Americans with Disabilities Act (ADA) and/or New Jersey Law Against Discrimination (LAD), be required to provide the employee with a reasonable accommodation unless doing so would be an undue hardship on the employer’s operations.
Other protocols require employers to:
- Conduct daily health checks, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, prior to each shift, consistent with CDC guidance.
- Exclude sick employees from the workplace and follow requirements of applicable leave laws.
- Promptly notify employees of any known exposure to COVID-19 at the worksite.
- Provide approved sanitization materials to employees and visitors at no cost to those individuals.
- Ensure that employees practice hand hygiene and provide sufficient break time for that purpose.
- Routinely clean and disinfect all high-touch areas in accordance with Department of Health (DOH) and CDC guidelines.
Governor Murphy explained the need for Executive Order No., 192, “Since the start of the pandemic … the federal government has failed to provide all workers the proper standards and protections that they deserve. Today’s executive order closes that gap to help ensure the health and safety of our workforce during this unprecedented time.”
If an employer takes an adverse employment action against an employee (e.g., job termination, suspension, demotion, cut in pay or hours, creates a hostile work environment) for reporting failure of the employer to implement the health and safety standards of Executive Order No. 192, the aggrieved employee may file a complaint with the New Jersey Department of Labor and Workforce Development or pursue a private action in court for violation of the New Jersey Conscientious Employee Protection Act (CEPA). To establish a CEPA violation, a Plaintiff is required to show (1) a reasonable belief that the employer’s conduct violated either a law, rule, regulation or public policy; (2) he performed a “whistle blowing” activity; (3) an adverse employment action; and (4) a causal connection. See Kolb v. Burns, 320 N.J. Super. 467, 477-78 (App. Div. 1999). The burden of establishing a prima facie whistleblowing case is not “onerous” and creates a presumption of unlawful retaliation. See DeWees v. RCN Corp., 380 N.J. Super. 511, 523-24 (App. Div. 2005).
Call the attorneys at Mashel law at (732) 536-6161 or fill out the contact form on this page for immediate help if your employer retaliates against you for reporting an employer’s failure to implement and enforce the health and safety standards required by Executive Order No. 192. At Mashel Law, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.