Governor Murphy recently issued Executive Order 242 (“EO 242”) and Executive Order 243 (EO 243), which ended the mask mandate in “indoor public spaces” and continued the requirement for masks for unvaccinated employees under certain circumstances in “indoor workplaces” that are not open to the public.
Additionally, employees in “indoor workplaces” that are not open to the public, who can show that they are fully vaccinated, do not need to wear masks or social distance. However, EO 243 makes it clear that businesses that require staff to report to work must continue to follow the applicable mitigation protocols of Executive Order No. 192. (EO 192).
EO 242 and EO 243 continue the requirement that unvaccinated employees in “indoor workplaces” that are not open to the public must continue to wear a mask when social distancing is impossible or not required and in line with the mitigation directives in EO 192.
Some language in EO 243 has caused confusion for employers. EO 243 allows employers to permit customers, visitors, and other authorized individuals to enter “indoor workplaces” that are not open to the public without requiring use of a mask or adherence to social distancing, regardless of their vaccination status. This is also while requiring unvaccinated employees in those same “indoor workplaces” to wear a mask when social distancing is impossible or not required (i.e., like those in personal offices or desks that are six feet or more apart).
EO 242 states that “in accordance with CDC recommendations, individuals who are not fully vaccinated should continue to wear masks in “indoor public spaces.” This would be applicable in the dealership showrooms, service areas and waiting rooms. Moreover, both EO 242 and EO 243 permit a dealership to impose stricter requirements regarding mask-wearing in “indoor public spaces” and “indoor workplaces” that are not open to the public for employees, customers, guests, visitors, and other authorized individuals. This places an enormous burden on dealerships to make the right decision when seeking to invite more people into the dealership while simultaneously protecting their employees, especially the ones who are not vaccinated.
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. The Occupational Safety and Health Administration (OSHA) recently provided guidance on mitigating and preventing the spread of COVID-19 in the workplace. The revised guidance focuses only on protecting unvaccinated or otherwise at-risk workers in workplaces (or well-defined portions of workplaces) and makes certain recommendations. NJ CAR has previously circulated an article on the OSHA guidelines. Of importance, is that dealerships are not mandated to follow these suggested practices; however, OSHA will consider an employer’s good faith efforts to comply with its guidance in the context of enforcement.
Because of the ongoing need to protect unvaccinated employees in the workplace and the potential for employees who do not feel protected to complain to the Department of Labor or OSHA, NJ CAR has previously taken the position that a dealership is both an “indoor public space” and “indoor workplace” that is not open to the public. This is so because of the mixture of showrooms and service facilities that are open to the public along with private offices and workspaces where the public is not invited. Therefore, NJ CAR recommends compliance with the “indoor public space” and “indoor workplaces” provisions of EO 242 and EO 243 and continued adherence to the applicable provisions of EO 192 which outlines mitigation protocols to stop the spread of COVID-19 and to protect employees.
Dealerships must comply with the following requirements in their indoor workspaces that are not open to the public for the protection of their unvaccinated employees:
- Require unvaccinated workers and customers to maintain at least six feet of distance from one another, to the maximum extent possible;
- Provide approved sanitization materials for employees and visitors at no cost to those individuals;
- Ensure that employees practice hand hygiene and provide employees with sufficient break time for that purpose;
- Routinely clean and disinfect all high-touch areas in accordance with DOH and CDC guidelines;
- Prior to each shift, conduct daily health checks, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, consistent with CDC guidance;
- Do not allow sick employees to enter the workplace and follow requirements of applicable leave laws;
- Promptly notify employees of any known exposure to COVID-19 at the worksite; and
- Clean and disinfect the worksite in accordance with CDC guidelines when an employee at the site has been diagnosed with COVID-19 illness.
Dealerships are, again, free to impose stricter mask-wearing requirements pursuant to both EO 242 and EO 243. What is clear from both Executive Orders is that the burden is on dealerships to be vigilant in the protection of their unvaccinated employees while taking advantage of the expanding access to their showrooms, service areas and indoor workspaces to the unmasked unvaccinated invitee.
For more information on the New Jersey’s requirements for businesses, please click HERE.