Effective as of 8:00 p.m. on Friday April 10, 2020 (the “Effective Date”), Governor Murphy’s Executive Order #122 shut down non-essential construction (as defined in the order) and increased the responsibilities of landlords and retail establishments.

1. As of the Effective Date, the physical operations of all non-essential construction projects shall cease. The order identifies the following fourteen (14) types of projects as “essential construction projects:”

• a. Projects necessary for the delivery of health care services, including but not limited to hospitals, other health care facilities, and pharmaceutical manufacturing facilities;
• b. Transportation projects, including roads, bridges, and mass transit facilities or physical infrastructure, including work done at airports or seaports;
• c. Utility projects, including those necessary for energy and electricity production and transmission, and any decommissioning of facilities used for electricity generation;
• d. Residential projects that are exclusively designated as affordable housing;
• e. Projects involving pre-K to grade 12 schools, including but not limited to projects in Schools Development Authority districts, and projects involving higher education facilities;
• f. Projects already underway involving individual single-family homes, or an individual apartment unit where an individual already resides, with a construction crew of 5 or fewer individuals. This includes additions to single-family homes such as solar panels;
• g. Projects already underway involving a residential unit for which a tenant or buyer has already entered into a legally binding agreement to occupy the unit by a certain date, and construction is necessary to ensure the unit’s availability by that date;
• h. Projects involving facilities at which any one or more of the following takes place: the manufacture, distribution, storage, or servicing of goods or products that are sold by online retail businesses or essential retail businesses, as defined by Executive Order No. #107 (2020) and subsequent Administrative Orders adopted pursuant to that Order;
• i. Projects involving data centers or facilities that are critical to a business’s ability to function;
• j. Projects necessary for the delivery of essential social services, including homeless shelters;
• k. Any project necessary to support law enforcement agencies or first responder units in their response to the COVID-19 emergency;
• l. Any project that is ordered or contracted for by Federal, State, county, or municipal government, or any project that must be completed to meet a deadline established by the Federal government;
• m. Any work on a non-essential construction project that is required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project; and
• n. Any emergency repairs necessary to ensure the health and safety of residents.

The order does not address the effect on projects described in item (g) above which relate to both an essential use and a non-essential use, i.e., a mixed-use project where an essential retail operation is on the first floor and market rate multifamily units (that don’t otherwise qualify based upon the above list) are above the retail establishment.

2. The Order sets forth specific policies which must be put in place at “essential” construction sites as of the Effective Date to limit the spread of COVID-19. These limitations are much like the limitations placed upon essential retail establishments.

3. As of the Effective Date, essential retail businesses must adopt various policies to limit the spread of COVID-19. Those policies include:

• Limiting occupancy at 50% of the stated maximum store capacity, if applicable, at one time;
• Establishing hours of operation, wherever possible, that permit access solely to high-risk individuals, as defined by the CDC;
• Installing 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;
• Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
• Provide employees break time for repeated hand-washing throughout the workday;
• Arranging for contact-less 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;
• Providing sanitization materials, such as hand sanitizer and sanitizing wipes, to staff and customers;
• Requiring frequent sanitization of high-touch areas like restrooms, credit card machines, keypads, counters and shopping carts;
• Placing conspicuous signage at entrances and throughout the store, if applicable, alerting staff and customers to the required six feet of physical distance;
• Demarcating six feet of spacing in check-out lines to demonstrate appropriate spacing for social distancing; and
• Requiring workers and customers to wear cloth face coverings while on 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 entry to the individual, unless the business is providing medication, medical supplies, or food, in which case the business policy should provide alternate methods of pickup and/or delivery of such goods. Nothing in the stated policy should prevent workers or customers from wearing a surgical-grade mask or other more protective face covering if the individual is already in possession of such equipment, or if the business is otherwise required to provide such worker with more protective equipment due to the nature of the work involved. Where an individual declines to wear a face covering on store 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.

4. As of the Effective Date, essential retail businesses, warehousing businesses, manufacturing businesses, and businesses performing essential construction projects must also adopt policies that include, at minimum, the following requirements:

• 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 work site in accordance with CDC guidelines when a worker at the site has been diagnosed with COVID-19 illness; and
• Continue to follow guidelines and directives issued by the New Jersey Department of Health, the CDC and the Occupational Health and Safety Administration, as applicable, for maintaining a clean, safe and healthy work environment.

5. As of the Effective Date, businesses authorized to maintain in-person operations, owners of buildings used for commercial, industrial or other enterprises, including but not limited to facilities for warehousing, manufacturing, commercial offices, airports, grocery stores, universities, colleges, government, hotels, and residential buildings with at least 50 units, shall adopt policies that, at minimum, implement the following cleaning protocols in areas where operations are conducted:

• Clean and disinfect high-touch areas routinely in accordance with CDC guidelines, particularly in spaces that are accessible to staff, customers, tenants, or other individuals, and ensure cleaning procedures following a known or potential exposure in a facility are in compliance with CDC recommendations;
• Otherwise maintain cleaning procedures in all other areas of the facility; and
• Ensure that the facility has a sufficient number of workers to perform the above protocols effectively and in a manner that ensures the safety of occupants, visitors, and workers.

As proposed, the above requirements may actually create obligations where landlords were not otherwise contractually obligated pursuant to its leases to provide cleaning services.

If you have any questions regarding New Jersey Executive Order #122, you can reach the BMK real estate team via our main office phone, (973) 376-0909, using the extensions below or by accessing the mobile telephone numbers and email addresses provided:

Keith Marlowe
Office Extension: 1120
Mobile: (973) 568-7559
kmarlowe@bmk-law.com

Richard Schkolnick
Office Extension: 1121
Mobile: (917) 514-8043
rschkolnick@bmk-law.com

Michael Greenberg
Office Extension: 1119
Mobile: (917) 716-9302
mgreenberg@bmk-law.com

A copy of Executive Order #122 can be found at: https://nj.gov/infobank/eo/056murphy/pdf/EO-122.pdf .

This article is for informational purposes only and is not intended to constitute, and does not constitute, legal advice.