New Jersey: Rules for Re-Opening Indoor Retail, Recreational and Entertainment Businesses and Individual Instruction at Gyms

On June 26, 2020, New Jersey Governor Phil Murphy issued Executive Order 157 (“EO 157”), which details rules for the reopening of indoor retail, recreational and entertainment businesses (including casinos) and individual instruction at gyms.  Initially, EO 157 also permitted indoor dining (with restrictions) to begin on July 2, 2020,  but Gov. Murphy reversed that decision three days later via Executive Order 158 (“EO 158”) and has said that indoor dining in New Jersey will continue to be prohibited indefinitely.  Gov. Murphy based this reversal on the “spikes in COVID-19 cases” in other states that have allowed indoor dining and the need to remove masks indoors for extended periods while eating and drinking.

Indoor Retail

EO 157 permits all retail establishments (whether indoor or outdoor) to open, provided that they adopt policies that include, at minimum, the following requirements:

• Limit occupancy of any indoor premises to 50 percent of the stated maximum store capacity, if applicable, at one time, excluding the retail establishment’s employees;
• Limit total capacity of any outdoor area to a number that ensures that all individuals can remain six feet apart;
• Establish hours of operation, wherever possible, that reserve a designated period of access solely to high-risk individuals, as defined by the CDC;
• Install a physical barrier, such as a shield guard, between customers and cashiers/baggers wherever feasible or otherwise ensure six feet of distance between those individuals, except at the moment of payment and/or exchange of goods;
• Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
• Provide employees break time for repeated handwashing throughout the workday;
• Arrange for contactless pay options, pickup, and/or delivery of goods wherever feasible. Such policies shall, wherever possible, consider populations that do not have access to internet service;
• Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to staff and customers;
• Require frequent sanitization of high-touch areas like restrooms, credit card machines, keypads, counters and shopping carts;
• Place conspicuous signage at entrances and throughout the store, if applicable, alerting staff and customers to the required six feet of physical distance;
• Demarcate six feet of spacing in check-out lines to demonstrate appropriate spacing for social distancing; and
• Require workers and customers to wear cloth face coverings while in the indoor portion of the premises, except where doing so would inhibit that individual’s health or where the individual is under two years of age, and require workers to wear gloves when in contact with customers or goods.
• Businesses must provide, at their expense, such face coverings and gloves for their employees.
• If a customer refuses to wear a cloth face covering for non-medical reasons and if such covering cannot be provided to the individual by the business at the point of entry, then the business must decline the individual entry into the indoor premises. If the business is providing medication, medical supplies, or food, the business policy should provide alternate methods of pickup and/or delivery of such goods for such individual. Where an individual declines to wear a face covering in the indoor premises due to a medical condition that inhibits such usage, neither the essential retail business nor its staff shall require the individual to produce medical documentation verifying the stated condition.

Indoor/Outdoor Entertainment

EO 157 states that as of 6:00 a.m. on Thursday, July 2, 2020, all recreational and entertainment businesses are permitted to open their entire premises, whether indoor or outdoor, to the public (except for certain indoor spaces that are specifically excepted, as set forth below), provided that such businesses adopt policies that include, at minimum, the following requirements:

• Limit the number of patrons in any indoor premises to 25 percent of the stated maximum capacity, if applicable, at one time, excluding the recreational or entertainment business’s employees;
• Limit total capacity of any outdoor area to a number that ensures that all individuals can remain six feet apart, except for amusement parks, water parks, and pools, which are limited to 50 percent capacity, excluding the employees of those businesses;
• Require that reservations, cancellations and pre-payments be made via electronic or telephone reservation systems to limit physical interactions. Such policies shall, wherever possible, consider populations that do not have access to internet service or credit cards;
• Install a physical barrier, such as a shield guard, between visitors and employees wherever feasible or otherwise ensure six feet of distance between those individuals, except at the moment of payment;
• Limit the use of equipment rented or otherwise provided by the business to one person at a time, excluding immediate family members, caretakers, household members, or romantic partners, and sanitize such equipment before and after use;
• Demarcate and post signs that denote six feet of spacing in all commonly used and other applicable areas or where people may form a line;
• Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
• Provide employees break time for repeated handwashing throughout the workday;
• Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to staff and customers;
• Limit occupancy in restrooms that remain open to avoid over-crowding and maintain social distancing through signage and, where practicable, the utilization of attendants to monitor capacity;
• Require frequent sanitization of high-touch areas including, at minimum, the following cleaning protocols:
• Routinely clean and disinfect all high-touch areas in accordance with New Jersey Department of Health (“DOH”) and federal Centers for Disease Control (“CDC”) guidelines, particularly in spaces that are accessible to staff, customers, or members, or other individuals, including, but not limited to, restroom and locker facilities, counter tops, hand rails, door knobs, other common surfaces, safety equipment, and other frequently touched surfaces including employee used equipment, and ensure cleaning procedures following a known or potential exposure in compliance with CDC recommendations;
• Clean and disinfect equipment that is rented in accordance with CDC and DOH guidelines; and
• Train and equip employees to perform the above protocols effectively and in a manner that promotes the safety of the visitors and staff;
• Place additional restrictions on areas of the business, as necessary, to limit person-to-person interactions and facilitate appropriate social distancing;
• Immediately separate and send home workers who appear to have symptoms consistent with COVID-19 illness upon arrival at work or who become sick during the day;
• Promptly notify workers of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the Americans with Disabilities Act and any other applicable laws;
• Clean and disinfect the worksite in accordance with CDC guidelines when a worker at the site has been diagnosed with COVID-19 illness;
• Continue to follow guidelines and directives issued by the DOH, the CDC and the Occupational Health and Safety Administration, as applicable, for maintaining a clean, safe and healthy work environment;
• Require workers and customers to wear cloth face coverings while in the indoor portion of the premises, except where doing so would inhibit that individual’s health or where the individual is under two years of age, and require workers to wear gloves when in contact with customers or goods;
• Businesses must provide, at their expense, such face coverings and gloves for their employees;
• If a customer refuses to wear a cloth face covering for non-medical reasons and if such covering cannot be provided to the individual by the business at the point of entry, then the business must decline the individual entry into the indoor premises. Where an individual declines to wear a face covering in the indoor premises due to a medical condition that inhibits such usage, neither the essential retail business nor its staff shall require the individual to produce medical documentation verifying the stated condition; and
• The requirements regarding mask wearing shall not apply where impracticable, such as when individuals are eating or drinking while seated, or in an aquatic space such as a pool.

EO 157 further states that while the following recreational and entertainment businesses may open their outdoor spaces to the public, they may not open their indoor spaces to the public (except to enter or exit the establishment, or to use the restroom):

• “Health clubs,” as defined by J.S.A. 56:8-39, which include gyms and fitness centers, as well as any health club facilities located in hotels, motels, condominiums, cooperatives, corporate offices, or other business facilities;
• Entertainment centers where performances are viewed or given, including movie theaters, performing arts centers, other concert venues; and
• Amusement or water parks that are indoors.

EO 157 also provides the following respecting miscellaneous indoor and outdoor businesses:

• Any establishment open to the public, including a food or beverage establishment, must cordon off any indoor or outdoor dance floors to the public;
• Amusement and water parks are permitted to open their outdoor premises to the public only where they are in compliance with the health and safety standards issued by the Commissioner of DOH;
• Pool facilities are permitted to open to the public only where they are in compliance with the health and safety standards issued by the Commissioner of the DOH.
• Effective at 6:00 a.m. on Thursday, July 2, 2020, aquatic recreation facilities and water fountains (those considered recreational, not those for drinking) are permitted to be open to the public.
• Effective at 6:00 a.m. on Thursday, July 2, 2020, playgrounds, including playgrounds at pool facilities, are permitted to be open to the public;
• Individuals who are at any of these businesses at a specific time, a specific location, and for a common reason, such as a poker tournament at a casino, a wedding at a restaurant, or an outdoor concert or movie screening, are subject to the State gathering limits in effect at that time.

Individual Instruction Inside Gyms/Fitness Centers

While health clubs may not open their indoor spaces to the public generally, EO 157 provides that they may offer individualized indoor instruction by appointment only where an instructor is offering training to an individual, and the individual’s immediate family members, household members, caretakers, or romantic partners. If a health club is offering multiple simultaneous instructions at the same facility, these instructions must take place in separate rooms or, if they take place in the same room, must be separated by a floor-to-ceiling barrier that complies with all fire code requirements.

Casinos

Casinos, including casino gaming floors and retail sports wagering lounges, may only reopen their premises to the public if they comply with any and all additional requirements imposed by the Division of Gaming Enforcement, and racetracks may only reopen their premises to the public if they comply with any and all existing and additional requirements imposed by any relevant State entity, including the New Jersey Racing Commission and the New Jersey Office of Emergency Management.   Pursuant to EO 158, dining, drinking or smoking inside casinos remain prohibited.

A Summary Plan of Reopening Protocols for Atlantic City casinos (developed by the Casino Association of New Jersey, Inc. in consultation with AtlantiCare Health System) and the Order approving same can be found here.

Clarification of Mask Wearing Rules for Personal Care Facilities

Personal Care Facilities were permitted to reopen with restrictions pursuant to  Executive Order 154, and, as applicable, DOH Executive Directive No. 20-015 and Division of Consumer Affairs Administrative Order No. 2020-09 (which we wrote about here).  EO 157 clarifies that notwithstanding any prior provision prohibiting services that would require the removal of a client’s face covering, the personal care services may be provided as of 6:00 a.m. July 2, 2020 so long as the clients wear a face covering at all times before and after the service, and the business complies with any enhanced standards for the provision of such services that the Division of Consumer Affairs or DOH may adopt, as applicable.

In addition, EO 157 provides that facilities or of health facilities providing medically necessary or therapeutic services shall remain prohibited until explicitly authorized by an order from the State Director of Emergency Management. If such an order is issued, these personal care services must be provided in a manner that complies with standards issued by the Division of Consumer Affairs and DOH, as applicable, and all other applicable laws and regulations. EO 157 also states that nothing in the relevant paragraph shall be construed to preclude an individual from providing personal care services in a shop, office, or other premises licensed, or otherwise authorized by the Division of Consumer Affairs or one of its licensing boards or DOH that is located in a residence, provided they comply with standards issued by the Division of Consumer Affairs and DOH, as applicable, and all other applicable laws and regulations.