On May 24, 2021, Governor Phil Murphy signed Executive Order 242 (“EO”) eliminating the mask mandate for “indoor public spaces” in certain areas, effective Friday, May 28, 2021. The EO provides that individuals in “indoor public spaces” are not required to wear masks regardless of their ability to maintain six feet of distance from other individuals or groups. However, the EO emphasizes that individuals who are not fully vaccinated should continue to wear masks in “indoor public spaces” as recommended by the Centers for Disease Control (“CDC”).
Employers and entities overseeing public spaces where masking is no longer required are permitted to impose stricter requirements regarding mask-wearing in indoor settings for employees, customers, guests, and other individuals consistent with federal and State law. Employers and entities shall not restrict individuals from wearing masks and shall not penalize or retaliate against individuals who choose to wear a mask.
The EO emphasizes that “indoor public spaces” do not include indoor worksites of employers that do not open their indoor spaces to the public for purposes of sale of goods, attendance at an event or activity, or provision of services. All dealerships would qualify as an “indoor public space” because they open their doors to the public for sales, service, and repairs. The EO makes clear that individuals shall continue to wear face coverings in indoor workplaces that are not “indoor public spaces” subject to the exceptions put in place by Executive Order No. 192. These exceptions include when employees are at a distanced workstation, has their own office and are maintaining six feet of distance from others. The EO also allows businesses that have opened their indoor and/or outdoor premises to the public to operate at full capacity.
The EO does not eliminate the mitigation protocols for businesses put in place to control the spread of COVID-19. While certain areas of a dealership are considered an “indoor public space”, dealerships also maintain workspaces (i.e. administrative offices and service department) for their employees while inviting the public inside to conduct business and therefore must continue to adhere to the mitigation protocols in those areas.
While it is a dealership’s decision whether to require mask-wearing by employees, customers, guests, and other individuals, for the safety of its employees they must continue to:
- Adopt a COVID policy;
- Advise employees of the policy; and
- Get signed acknowledgement of the policy by their employees.
- 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 workplace and follow requirements of applicable leave laws;
- Promptly notify employees of any known exposure to COVID-19 at the worksite;
- Clean and disinfect the worksite in accordance with CDC guidelines when an employee at the site has been diagnosed with COVID-19 illness;
- Frequently sanitize high touch areas of the showroom and service waiting areas;
- Sanitize vehicles before and after service, test drives and upon delivery.
- Dealerships can ask customers and employees if they have been vaccinated and ask for some type of proof. It is recommended that the proof does not go beyond an actual vaccination card. Most employers and businesses are not “covered entities” as that term is defined by the Health Insurance Portability and Accountability Act (“HIPAA”) and therefore will not violate HIPAA.
- Dealerships can eliminate the need for masks on the showroom floor. However, it is recommended that there be a consistent mask wearing policy for customers.
- Dealerships must continue to require masks be worn when social distancing is impossible in the administrative offices and service areas, unless when wearing a mask is unnecessary.
- Dealerships are permitted to impose stricter requirements regarding mask-wearing in indoor settings for employees, customers, guests, and other individuals consistent with federal and State law.
- When taking a test drive, both sales staff and customers should wear a mask.