On Saturday, March 21, 2020, New Jersey Governor Phil Murphy signed two Executive Orders to bring state-wide consistency to the mandated restrictions and closures arising from the COVID pandemic. The first, Executive Order 107 (Order 107) requires all nonessential New Jersey private businesses and nonprofits to close to the public (with certain exceptions), details restrictions and guidelines for those that are not required to close, and requires residents to stay at home unless they are engaging in excepted conduct. Order 107 supersedes and increases the prior restrictions set forth in Gov. Murphy’s March 16, 2020 Executive Order No. 104 (which among other actions, closed schools, some entertainment venues and put restrictions and limited hours on certain businesses). The second, Executive Order 108 (“Order 108”) invalidates most county or local restrictions that conflict with Order 107.
Update: As summarized below, on March 24, 2020 the State Director of Emergency Management (the “Director of Emergency Management”), in accordance with his authority, designated additional essential businesses under Order 107 and added a clarification regarding municipal control of beaches and boardwalks.
Closure of Non-Essential Retail Businesses and Guidelines for Those Businesses That Can Remain Open
Order 107 requires “brick and mortar premises of all non-essential retail businesses” to close to the public, and allows certain essential retail businesses to remain open (but wherever practicable they must provide pickup services outside or adjacent to their stores for goods ordered in advance online or by phone). If a business is already authorized to operate an online or telephonic delivery service under existing law, it may continue to do so. The list of essential retail businesses that may remain open are:
- Grocery stores, farmer’s markets and farms that sell directly to customers, and other food stores, including retailers that offer a varied assortment of foods comparable to what exists at a grocery store;
- Pharmacies and alternative treatment centers;
- Medical supply stores;
- Retail functions of gas stations;
- Convenience stores;
- Ancillary stores within healthcare facilities;
- Hardware and home improvement stores;
- Retail functions of banks and other financial institutions;
- Retail functions of laundromats and dry-cleaning services;
- Stores that principally sell supposes for children under five years old;
- Pet stores;
- Liquor stores;
- Car dealerships, but only to provide auto maintenance and repair services, and auto mechanics;
- Retail functions of printing and office supply shops; and
- Retail functions of mail and delivery stores.
Order 107 requires that any retail business whose brick-and-mortar premises remains open to the public shall abide by social distancing practices to the extent practicable, including by keeping customers six feet apart and frequent use of sanitizing products on all surfaces.
Mandated to close pursuant to Order 107 are all personal care facilities (such as beauty salons, barber shops, spas, nail salons tanning salons, tattoo parlors and the like); indoor or outdoor “places of public amusement” (such as amusement parks, water parks, aquariums, zoos, bowling alleys and arcades); and indoor portions of shopping malls (except for restaurants and other stores within malls that have their own external entrances for the public, which may remain open only if they comply with the applicable directives).
Order 107 continues the restrictions previously imposed by Order 104, to:
- limit all restaurant establishments, with or without a liquor license, to offering only delivery and/or take out-services only; and
- require the closure of all recreational and entertainment businesses (such as casinos, racetracks, gyms and fitness centers and classes, movie theatres and performing arts centers and other concert venues and nightclubs).
Those business or non-profits that can continue to operate (whether or not they are open to the public), must allow telework or work-from-home arrangements wherever practicable. Order 107 recognizes that some employee have functions that cannot be performed remotely (for example, law enforcement officers, fire fighters and other first responders; cashiers or store clerks; construction, utility, repair/maintenance or warehouse workers; lab researchers; information technology employees; janitorial and custodian staff and certain administrative staff). In such cases, the business or non-profit must make best efforts to reduce these on site staff to the “minimal number necessary to ensure that essential operations can continue.”
The State of New Jersey has provided further guidance regarding Order 107 here. (including examples of employers in other industries who may have positions that cannot work remotely, such as manufacturing, which according to the guidance can continue to operate at minimum essential numbers even though they are not specifically listed in Order 107).
Any business not listed in Order 107 that believes it should be considered essential may contact the State Director of Emergency Management (currently the Superintendent of the State Police), who has the discretion under Order 107 to make additions, amendments, clarifications and exceptions to the specific list of essential businesses.
Order 107’s Stay-At-Home Requirements for New Jersey Residents
Order 107 requires that “all New Jersey residents shall remain at home or at their place of residence” unless they are:
- obtaining goods or services from essential retail businesses (as described above and in Order 107);
- obtaining takeout food or beverages as permitted by Order 107;
- seeking medical attention, essential social services or assistance from law enforcement or emergency services;
- visiting family or other individuals with whom the resident has a close personal relationship (such as those for whom the person is a caretaker or romantic partner);
- reporting to or performing their job;
- walking, running, operating a wheelchair, or engaging in outdoor activities with immediate family member, caretakers, household members or romantic partners while following best social distancing practices with other individuals (e.g. staying six feet apart);
- leaving home for an educational, religious or political reason;
- leaving due to a reasonable fear for his/her health of safety; or
- leaving at the direction of law enforcement or other government agency.
Order 107 requires anyone in public to stay six feet apart whenever practicable; asks residents to use public transportation only if they have no other option (and if so, to stand or sit six feet away from other riders and to frequently use sanitizing products); and mandates the cancellation of any social gathering such as parties and celebrations.
Order 108
Order 108 invalidates any COVID-19-related county or municipal restriction that in any way will or might conflict with the provisions set forth in Order 107. The only exceptions are two categories over which municipalities or counties may impose any additional restrictions: (a) online marketplaces for arranging or offering lodging; and (b) municipal or county parks.
March 24, 2020 Update: The Director of Emergency Management added the following to the list of essential retail businesses that may remain open, subject to the same limitations described above:
- Mobile phone retail and repair shops;
- Bicycle shops, but only to provide service and repair;
- Livestock feed stores;
- Nurseries and garden centers; and
- Farming equipment stores.
The Director also clarified Order 108 to state that municipalities have the discretion to impose additional restrictions to local beaches and boardwalks in response to COVID-19.
