On October 28, 2020, Governor Murphy issued Executive Order 192 (EO 192) which sets forth new requirements and procedures to maintain workplace health and safety during the on-going COVID-19 pandemic. Executive Order 192 takes effect at 6:00 A.M. on Thursday, November 5, 2020. Unlike prior orders, this new order explicitly applies to all workplaces in the State that require or permit any workers to be physically present at a worksite to perform work. Many of these requirements should look familiar to new car dealers because essential retail businesses, like dealers, have been complying with similar public health and safety standards required by prior executive orders from the start of the pandemic. (See Executive Order 122).
In addition to applying to all workers and workplaces, EO 192 authorizes the Department of Health and the Department of Labor and Workforce Development to develop an enforcement process for investigating and addressing complaints about alleged violations of the order.
This article will explain how the health and safety requirements of EO 192 apply to all workers in the dealership, including the back-office employees, and how its requirements compare with previous Executive Orders. Specifically, employers must now adhere to the following requirements, regardless of employee function or department:
- Employers must require workers to maintain at least 6 feet of distance from one another, including but not limited to during meetings, orientations and other similar events that tend to take place in-person and within close proximity. This requirement also explicitly applies to restrooms, breakrooms and entering and exiting the worksite. Executive Order 192 extends this requirement to office workers, who were never explicitly required to maintain 6 feet of distance in prior orders.
- If maintaining 6 feet of distance is not possible, then employers must ensure that all employees wear masks and must install physical barriers between workstations wherever possible. This has always been required of essential retail workers, such as dealer employees. Executive Order 122 already required all employees and customers of retail establishments to wear masks while on the premises, with limited exceptions.
- Employers may allow employees to remove their face masks when employees are at their workstations and are more than 6 feet away from anyone else, or when the employee is alone in a walled office. This provision appears to clarify the social distancing requirements of prior orders and answers a frequent question about situations when employees can maintain consistent social distance and/or are physically isolated in an office. However, this new provision could be construed as inconsistent with the requirements of Executive Order 122 for retail businesses, discussed above, which simply mandate that masks be worn while “on premises”. Since Executive Order 192 states that the more protective portions of prior orders are preserved in the event of any inconsistencies, NJ CAR will seek clarification on this point.
- Employers must provide face masks to all employees, at the employer’s expense. This was already required of dealers under prior orders. Employees may still wear their own surgical-grade or more-protective masks. They may also wear additional protective equipment if it is otherwise required based on the nature of their work.
- Employers may deny entry to the worksite to employees who decline to wear a face mask, except where doing so would violate State or federal law. If an employee cannot wear a face mask because of a disability, an employer may be required to provide the employee with a reasonable accommodation, unless doing so would be an undue hardship on the employer’s operations. The order allows employers to require employees to produce medical documentation supporting claims they cannot wear a mask due to a disability. When faced with this situation, dealers should immediately reach out to legal counsel for advice as these disputes can lead to significant liability.
- Employers must ensure that employees practice regular hand hygiene, particularly employees who interact with the public. Employers must also provide break time for repeated handwashing throughout the workday and access to adequate handwashing facilities. This was always required of essential retail businesses under Executive Order 122, but Executive Order 192 applies these requirements to all workers in all businesses.
- Dealers must continue to implement policies that require employees to wear gloves. Previously, under Executive Order 122, gloves were required for essential retail workers who were handling goods or were in contact with customers. Under Paragraph 7 of Executive Order 192, it seems that this requirement for retail workers appears to remain in effect. A safe interpretation of the glove provision, found in Paragraph 1(d) of Executive Order 192, is that sales and service department personnel must continue to wear gloves when handling goods or interacting with customers, while it is in the dealership’s discretion whether to require gloves for back-office staff. Under these applicable orders, if an employer requires employees to wear gloves, the employer must provide gloves to the employees.
- Employers must routinely clean and disinfect high-touch areas. This includes areas accessible to employees, customers or other individuals, such as restrooms, doorknobs and equipment frequently used by employees (i.e., copiers). All cleaning procedures following a known or potential exposure to COVID-19 must comply with CDC recommendations. These requirements have applied to both commercial offices and essential retail businesses, including dealers, under Executive Orders 107 and 122.
- Employers must conduct daily health checks of all employees. These health checks are measures such as temperature screenings, visual symptom checking, self-assessment checklists and/or health questionnaires, consistent with CDC guidance regarding COVID-19 symptoms (the current CDC list of COVID-19 symptoms can be found at https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html). Notably, this provision appears to allow employers to use any of the suggested health screening methods, but does not require ALL of them to be used. Moreover, health screening is optional, pursuant to the CDC’s guidelines. For these reasons, a dealer could use self-assessment checklists in lieu of temperature checking. Nevertheless, health screenings must be conducted in compliance with the CDC’s guidelines (see https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html). Also, the screening process must comply with the confidentiality requirements of the applicable State and federal laws (see, for example, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws). In sum, there is no “one-size-fits-all” approach to health screening and whatever process a dealer adopts depends entirely on the individual business operation. Given the complexity of the issues related to health screening, dealers should seek approval from their legal counsel of any screen protocol they put in place.
- Employers must immediately separate and send home employees who appear to have symptoms of COVID-19 or who become sick during the workday. Employers must also still promptly notify all employees of any known exposure to COVID-19 at the workplace, consistent with the same State and federal privacy laws.
- With respect to customers, visitors and other individuals entering the workplace, employers must adhere to the following requirements:
- Employers must require 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 to wear a face mask, such as when eating or drinking). This was previously required of dealers under Executive Order 122.
- Employers may deny entry to the workplace to any customer or visitor who declines to wear a face mask, unless doing so would violate State or federal law. That is, the employer may be required to provide a reasonable accommodation for customers or visitors who decline to wear a mask due to a claimed disability, unless doing so would pose an undue hardship on the employer’s operations. However, the employer cannot ask for medical documentation of the customer or visitor’s disability unless production is otherwise required by State or federal law. Disputes of this nature can lead to significant liability for dealers. Accordingly, dealers should contact their legal counsel if a customer refuses to wear a mask and the dealer believes it presents an imminent danger to other customers or employees (e.g., the customer is coughing profusely or demonstrating obvious symptoms of COVID-19).
- For the benefit of employees, customers and visitors, employers must make available hand sanitizer that contains at least 60% alcohol and sanitizing wipes approved by the United States Environmental Protection Agency (the EPA’s list of disinfectants for COVID-19 can found at https://www.epa.gov/pesticide-registration/list-n-disinfectants-coronavirus-covid-19), at no cost to any employee, customer or visitor. Previously, Executive Order 122 stated only that retail businesses must provide hand sanitizer and sanitizing wipes to employees and customers. Executive Order 192 requires all employees have access to hand sanitizer and sanitizing wipes, paid for and provided by the employer. The requirement that the hand sanitizer contain at least 60% alcohol is new, so be sure to check the label on hand sanitizer available at your dealership.
- Paragraph 7 of Executive Order 192 provides that already-existing requirements inconsistent with Paragraph 1 of Executive Order 192 remain in effect, unless otherwise specified. For example, the following requirements from earlier orders remain in effect:
- Retail businesses should continue to arrange for contactless pay options, pickup and/or delivery of goods wherever feasible. (Executive Order 122, Paragraph 1(f)).
- Retail businesses should continue to establish special hours of operation when they permit access solely to high-risk individuals, as defined by the CDC. (Executive Order 122, Paragraph 1(b)).
- Retail businesses should continue to utilize signage to demonstrate 6 feet of social distancing and alert staff and customers to the required 6 feet of social distance. (Executive Order 122, Paragraphs 1(i) and (j)).
- All businesses or non-profits, whether closed or open to the public, must continue to accommodate their workforce, wherever practicable, for telework or work-from-home arrangements. (Executive Order 107, Paragraph 10).
- All businesses and non-profits should endeavor to reduce staff on site to the minimal number necessary to ensure essential operations. (Executive Order 107, Paragraph 11).
Leading by example, many NJ CAR members have already implemented many of the requirements set forth by Executive Order 192 through their participation in the NJ CAR Clean program designed to keep neighborhood new car dealers safe for employees and customers. Now, with the issuance of Executive Order 192, many of the best practices recommended by the NJ CAR Clean program are required across the board. The NJ CAR CLEAN program guide contains other, more specific best practices tailored to the automotive retail world. The recommendations contained in the NJ CAR CLEAN program guide often go above and beyond Executive Order 192 and address the day-to-day logistics of managing a dealership during a pandemic.
The coming weeks will bring more requirements and enforcement procedures. The Executive Order authorizes the Commissioner of the Department of Health (DOH) to impose additional health and safety standards relevant to COVID-19 on employers. It also authorizes the Commissioner of the Department of Labor and Workforce Development (DOLWD), in consultation with the DOH Commissioner, to enforce the requirements. The DOLWD will establish an intake process for receiving complaints from workers who are subject to the COVID-19 health and safety protocols outlined in the order. The DOLWD will coordinate with related agencies to refer complaints to those agencies.
Further, the DOLWD will create a process for evaluating those complaints and for addressing the complaints with employers. Employers will have an opportunity to correct the alleged or confirmed deficiency. The DOH Commissioner will establish a process for investigating the complaints, including, for example, conducting workplace inspections and issuing subpoenas. The DOH and the DOLWD will enter into a memorandum of understanding about the DOH’s investigative support and will coordinate with relevant federal and State agencies during this process.
The DOLWD will also provide compliance and safety training for employers and employees and will establish a program to fund workforce training partners to deliver the training (including virtual training) to workers and employers. They will also develop notices and informational materials about workers’ rights and employers’ obligations under this order.
Penalties for violating the order may include charges of disorderly conduct, fines and closure of the worksite by the DOH Commissioner.
NJ CAR will continue to support its members through regular updates of public health and safety requirements and best practices. However, dealers should consult their legal counsel with questions or plans specific to their unique businesses to ensure the most effective compliance.
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