On July 2, 2020, New Jersey Governor Phil Murphy signed Executive Order 162 (“EO 162”) extending the state’s Public Health Emergency by thirty days, i.e., until approximately August 2, 2020. Pursuant to EO 162, all Executive Orders and actions taken by any Executive Branch departments and agencies (including Administrative Orders) that were adopted in whole or in part based on the current Public Health Emergency will remain in full force and effect. A declared public health emergency gives Gov. Murphy and state department leaders expanded authority to respond to a crisis such as COVID-19.

Gov. Murphy initially declared both a State of Emergency and a Public Health Emergency on March 9, 2020, in Executive Order 103.  While the State of Emergency will stay in place indefinitely until lifted, the Public Health Emergency automatically terminates after thirty days, unless specifically extended.  EO 151 is the fourth such extension, with the first having been issued on April 7, 2020, in Executive Order 119, the second on May 6, 2020, in  Executive Order 138 and the third on June 4, 2020 in Executive Order 151.

On June 26, 2020, New 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% 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.

On June 7, 2020, Governor Lamont issued Sector Rules that Connecticut businesses must follow in order to open during Phase 2 of the state’s reopening plan.

Phase 2 (which began on June 17, 2020) includes the following sectors:

  • Amusement parks
  • Hotels/lodging
  • Restaurants (indoor)
  • Museums, zoos and aquariums
  • Indoor recreation (e.g. bowling, movie theaters etc.)
  • Libraries
  • Outdoor events
  • Personal services (e.g. nail salons, tattoo parlors, etc.)
  • Sports and fitness facilities (e.g. gyms, fitness centers, pools, etc.)
  • Film, television and digital media production

Self-Certification Required

Each Phase 2 Business is required to self-certify that it can meet the Sector Rules applicable to its industry prior to opening on June 17.  The certification process is online and can be accessed here.

Once the certification process is complete, businesses can opt to post a “Reopen CT” badge on-site and on social media to advertise adherence to rules and build customer confidence.

Sector Rules Common to Phase 2 Businesses

The following Sector Rules apply to Phase 2 Businesses:

  • Capacity limit of 50% for most businesses to reopen
  • Strict cleaning and disinfection protocols in all settings
  • Employers should encourage those who can work from home to continue to do so
  • Those in high-risk groups or over the age of 65 who can stay home should continue to be permitted to do so;
  • Employees are required to wear face masks or other cloth face-covering that covers the nose and mouth, unless doing so would be contrary to his or her health and safety due to medical conditions (see our prior guidance regarding use of face masks for Essential Employers, which remains in effect)
  • Social and recreational gatherings are limited to those permitted by the Governor’s orders, which most recently provide that effective July 3, 2020, indoor private gatherings are limited to 25 people, and outdoor private gatherings are limited to 100 people (there is a one-time exception for graduations for up to 150 people). At outdoor organized gatherings (e.g. fireworks, concert in a municipal park) there must be 15 feet of space between blankets and a limit of 500 people. Outdoor event venues (e.g. amphitheaters, race tracks) are limited to 25% of the fire capacity and distancing must be followed.

Rules Applicable to Reopening Readiness, Logs, Scheduling and Training

All Phase 2 Businesses that plan to reopen must provide adequate administration and training protocols, as detailed in each set of rules for the various sectors, many of which contain similar requirements, such as:

  • Sharing the applicable Sector Rules with employees
  • Appointing a program administrator who will be accountable for implementing the rules
  • Estimating the required PPE needed for its employees and procuring such materials
  • Instituting a training program and ensure that employees participate in the program prior to reopening. The training must include:
    • Protocols on how to clean and use cleaning products and disinfectants safely
    • If businesses contract on-site cleaning duties, it is the business’ responsibility to ensure that the subcontractor is also appropriately trained
    • Training must be provided during working hours and at no cost to the employee
    • Weekly refreshers on the training are required
  • Maintaining a log of employees on the premises over time to support contact tracing (hotels must also keep a guest log to support contract tracing)
  • Developing cleaning plans and checklists that incorporate the rules and ensure that it is clear which employees are responsible for implementing the plans
  • Completing a thorough cleaning of the facility prior to reopening
  • Staggering shift start/stop times, break times, and lunchtime to minimize contact across employees
  • Employers are responsible for enforcing capacity limits

Personal Protection Equipment (PPE)

Phase 2 businesses must also follow the rules regarding PPE:

For Employees

Employers must provide PPE for employees

  • All employees are required to wear a face mask or other cloth face-covering that completely covers the nose and mouth, unless doing so would be contrary to his or her health or safety due to medical conditions
  • Employees may utilize their own cloth face-covering instead of the one provided by their employer
  • Gloves and eye protection are required when using cleaning chemicals. Latex free gloves are also required for restaurant table servers, and all restaurant employees shall follow FDA guidelines on usage of gloves where appropriate
  •  If businesses do not have adequate PPE, they cannot open

PPE for Customers

  • Customers are required to bring and wear masks or cloth face-coverings that completely cover the nose and mouth unless doing so would be contrary to his or her health or safety due to a medical condition

Rules Regarding Hygiene, Cleaning and Disinfecting

Phase 2 businesses must adhere to strict cleaning and disinfecting rules, as follows:

  • Where possible, hand sanitizer shall be made available at entrance points and common areas
  • Employers must require that employees wash their hands routinely using soap and water for at least 20 seconds
  • Where possible, employers should make cleaning, disinfectant products and/or disposable disinfectant wipes available near commonly used surfaces
  • Bathrooms must be cleaned and disinfected frequently. Businesses should implement and use a cleaning log for tracking. Clean multiple times per day and hourly during busy times
  • Clean and disinfect common areas, high transit areas and frequently touched surfaces on an ongoing basis (at least daily) and more frequently if used more often. Clean and disinfect shared objects between use
  • Businesses shall follow federal guidelines (CDC, EPA) on what specific products shall be used and how. CDC and EPA guidance is available here and here.

Rules Regarding Health of Employees

Daily Health Check

Phase 2 Businesses must ask employees who return to work on-premises to confirm that they have not experienced COVID-19 symptoms, as defined by the CDC, including cough, shortness of breath or any two of the following symptoms:

  • Fever
  • Chills
  • Repeated shaking with chills
  • Muscle pain
  • Headache
  • Sore throat
  • New loss of taste or smell

In the event of a positive COVID-19 Test:

  • Employees should inform their employers, and follow state testing and contract tracing protocols. Connecticut generally follows the CDC recommended protocols for testing and contract tracing (which are consolidated here), and has developed a statewide voluntary and confidential contact tracing platform, explained here.

Leave

  • Employers shall adhere to federal guidance pertaining to paid leave for employees and provide this guidance to employees, available here. Employers shall post the Families First Coronavirus Response Act (FFCRA) DOL poster, available here.

Whistleblower Protection

  • Employers may not retaliate against workers for raising concerns about COVID-19 related safety and health concerns

Additional Rules by Sector

The sector-specific rules contain additional detailed information and requirements regarding physical distancing, facility capacity, signage, PPE, and more, and are set forth below, along with explanations regarding the capacity limits for each sector.

Amusement Parks

Amusement Parks can reopen at up to 25% capacity, and shall calculate maximum safe occupancy for each ride area to allow for social distancing between groups and to comply with state social-gathering size guidance (set forth above), such as leaving empty seats or rows. Amusement Parks are required to leverage signage, floor markings, and enhanced presence of attendants and other personnel to enforce such occupancy rate. All self-service stations and refillable cup programs must be disabled. Parking staff must direct customers to park in every other spot.  Lines for rides must be rearranged to prevent patrons from having to pass face-to-face at a distance of less than 6 feet. . If applicable, every second or third locker must be disabled.  If independent showers are available, they must be attended and sanitized after each use. Parks should encourage on-line ticket purchase to the greatest extent possible and place markers in ticket lines 10 feet apart to account for families waiting in line together. Seats and restraints on rides must be cleaned frequently.

Additional Sector Rules specific to Amusement Parks are available here.

Hotels and Lodging

Hotels can reopen at 50% capacity to guests with reservations.  Hotels must limit visitors and service providers on site. Concierge service should be provided by phone only.  Room deliveries are to be bagged and left at the front door with a knock to notify guests. Employees are prohibited from entering guest rooms while guests are present (e.g. no in-room bellhop). Non-essential amenities such as water, coffee, mini-bars and ice machines should be removed, and non-essential services, such as valet and coat check, should be closed.  Common areas should be rearranged for social distancing. “Passive Decontamination” of 24 hours after guest check out is recommended. Discrete work zones for cleaning crews should be created to minimize overlap. Ventilation systems should increase percentage of outdoor air where possible.  Management and housekeeping staff shall meet to discuss enhanced cleaning procedures, such as allowing extra time to conduct thorough cleaning and disinfection of rooms between guests. Employers must be sure to compensate housekeepers for time spent on the required cleaning and related precautions.   Keycards should be disinfected at check-in and check-out.

Additional Sector Rules specific to hotels are available here.

Restaurants

Restaurants may open with indoor seating at 50% of an establishment’s regular indoor seating capacity. Outdoor seating is still encouraged as long as the restaurant does not exceed its regular operating capacity and physical distancing can be maintained.  Discreet work zones should be set up for servers to avoid overlap.  Buffett and self-service stands must be closed. Indoor waiting areas must be closed.  Tables should be rearranged to maintain at least 6 feet of space between customer groups, unless barriers that extend 30 inches above table height are installed between table/booths. Non-essential amenities, such as dance floors and pool tables, should be closed. Silverware should be rolled or packaged. The use of no-touch or disposable menus is encouraged, or menus must be sanitized between uses. Bar seating is permitted provided there is no active work are behind the bar or where a barrier has been set up to separate customers from bar space.

Addition Sector Rules specific to restaurants are available here.

Museums, Zoos and Aquariums

Museums, zoos and aquariums may open outdoor and indoor exhibits at 50% capacity, which is calculated as the maximum capacity that is consistent with social distancing guidelines or 50% of the fire code capacity, whichever is lower. The rules require calculation of the maximum capacity for each separate exhibition/room.  .  There must be an isolation plan in case any attendee self-identifies or becomes ill with symptoms of COVID-19.  Performances are permitted outdoors only. Interactive exhibits may only open if they are cleaned thoroughly and routinely. Staff members who are trained in safety protocols should be stationed in discrete exhibit areas to discourage loitering and enforce timed entry and exit.

Additional Sector Rules specific to museums, zoos and aquariums are available here.

Indoor Recreation

Indoor recreation businesses may open at up to 50% capacity, however, businesses should limit customers to the number of customers that can be appropriately supervised by staff to ensure continuous compliance with rules for mask wearing, social distancing and cleaning/disinfecting of equipment and common areas.  If a business does not have a maximum capacity on record, it may determine maximum Phase 2 capacity as 1 person (including employees) per 150 square feet. Indoor waiting areas should be closed and space should be rearranged to maintain a least 6 feet of distance between customers for group activities. These businesses must close or remove non-essential amenities and are encouraged to use no-touch or disposable pamphlets and pricing materials (but if that is not commercially possible, materials must be sanitized between uses).

 Additional Sector Rules specific to Indoor Recreation are available here.

Libraries

Libraries must calculate a maximum occupancy that is consistent with social distancing guidelines or 50% of the library’s fire code capacity, whichever is lower.  For periods of time when high traffic is expected, libraries should post guards at the entrance to count and monitor the number of patrons inside the library.  Libraries must block off every other or every third computer to ensure social distancing, and consider ways of maintaining social distancing in aisles between stacks, including signs to direct traffic patterns, limiting the number of patrons allowed in stack areas or providing access to materials by staff retrieval. They should also encourage patrons to use book drops rather than in-person returns.  Patrons shall be required to bring their own water bottles and water fountain use should be restricted to filling water bottles only.

Additional Sector Rules specific to Libraries are available here.

Outdoor Arts and Entertainment Events

The Sector rules that apply to Outdoor Events differ from those applicable to other Phase 2 businesses. Outdoor Events refer to “individual gatherings for a defined purpose by invitation, taking place on a specific date, and within a specific range of times (e.g. starting at 10 am and ending at 1 pm).”  According to the rules, outdoor events, referred to as outdoor gatherings in the Sector Rules, must comply with the rules governing conduct in public spaces as well.  The Sector Rules for Outdoor Events should be reviewed in their entirety, and are available here.

Personal Services

Personal services (which includes day spas, electrology, estheticians, floating, piercing, spa, tanning, tattoo, waxing, massage therapy, nail and eyelash technicians) may open at 50% capacity and by appointment only. Waiting rooms must remain closed.  Personal services that require a customer to remove a mask cannot reopen in Phase 2. Treatment rooms must be alternated so that no two patients are in the same space consecutively or, if this cannot be done, there must be sufficient time between clients to properly clean and disinfect the rooms. Each towel, robe or linen can only be used once and then be laundered. Individuals handling laundry must wear a mask, gloves, face shield, and protective cover over clothes.

The Sector Rules applicable to personal services businesses are available here.

Sports, Sports Clubs & Complexes, Gyms, Fitness Centers & Pools

Each outdoor sporting event field will be limited to two teams, officials, and limited family members. Indoor sporting events will be limited to 50% of building capacity or 25 people (whichever is smaller) per field, court, pool, rink, etc. For indoor sporting events, capacity limits can be exceeded, but only to include one parent/guardian per athlete. Sports that are allowed to be played include all age ranges.

Gyms, sports clubs, and fitness centers that do not provide organized sports shall operate at 50% capacity. Establishments that require customers to wear a mask while exercising must maintain 6 feet of space between equipment/people. Establishments that do not require customers to wear a mask while exercising must maintain 12 feet of space between equipment/people. Athletes, coaches and customers shall be required to bring their own water bottles. Establishments must disable every other or every third locker, and close steam rooms and saunas. Employees shall clean all equipment frequently and customers must wipe down equipment after each use, including free weights..  If independent showers are available, they must be attended and sanitized between each use. Water fountains are restricted to filling water bottles. For organized games, game balls must be disinfected after each game, and there must be 30 minute intervals in between to prevent overlap, and no high-fives or huddles are permitted.

The Sector Rules applicable to sports, sports clubs, gyms, fitness centers and pools are available here.

Film, Television and Digital Media Production

The Connecticut Office of Film, Television and Digital Media recommends that all film, television and digital media productions follow the June 1, 2020 “White Paper” guidance created by the Alliance of Motion Picture and Television Producers Industry-Wide Labor-Management Safety Committee Tasks Force, which is available here.  It is further recommended that office staff and management should observe the ReOpen Sector Rules for Offices, available here.

Please see our prior advisory regarding the Sector Rules for Offices, available here.

Enforcement of Sector Rules

Executive Order No. 7PP states that a violation of the Sector Rules constitutes a public nuisance under Connecticut regulations.  Thus, all state statutes, regulations, local rules, codes or ordinances pertaining to public nuisances are modified to permit and govern the investigation and enforcement of violations of the Sector Rules.  The Executive Order specifically grants authority to the Local Health Director and District Health Director and Municipal designees to enforce Sector Rules.  Remedies include closure of the business until it is in compliance with the Sector Rules.

What Connecticut Employers Should Do Now

Connecticut employers should become familiar with the above Sector Rules, and all applicable federal and state rules and guidelines, and take steps to comply, including by doing the following:

  • Appoint an administrator or team to manage the reopen process and meet all state-mandated and federal requirements, as well as procure the required PPE and cleaning supplies to meet the cleaning guidelines;
  • Establish and implement necessary policies and procedures (e.g. training, required social distancing, mask wearing), and create or obtain needed signage or other material (e.g. no-touch menus or pricing material, signage to show customers where to stand/walk to maintain social distancing) to comply with all applicable rules and guidance;
  • Plan appropriate scheduling to reduce or stagger the number of staff present in the workplace, and consider which employees can work from home or continue doing so;
  • Maintain records of all steps taken in compliance with the Sector Rules governing reopening;
  • Be cognizant that while the reopening Sector Rules state that employees in high-risk groups and over the age of 65 should continue to stay home, this is permissive and not mandatory. Employers must also follow federal and state age and disability discrimination laws, which do not allow employers to mandate employees who are or perceived to be in high-risk groups to stay home, but require a case-by-case analysis of whether an employee who raises the issue can be reasonably accommodated. If you are faced with such return-to-work issues, seek expert legal advice.

Trump Administration Amends Presidential Proclamation That Temporarily Suspends New H-1B, H2B, J-1, and L-1 Visa and Travel from Abroad

On June 29, 2020, the Trump administration issued an amendment to Section 3(a)(ii) of Proclamation 10052 (“Proclamation”) to suspend and limit foreign nationals attempting to enter the United States in H-1B/H-2B/H-4, L-1/L-2, or J-1/J-2 employment-based nonimmigrant visa categories.

The original language in the Proclamation read as follows:

Sec3. Scope of Suspension and Limitation on Entry. (a) The suspension and limitation on entry pursuant to section 2 of this proclamation shall apply only to any alien who: … (ii) does not have a non-immigrant visa that is valid on the effective date of this proclamation; and… .

The language in the amendment says the following:

Section 1. Amendment. Section 3(a)(ii) is amended to read as follows: “(ii) does not have a nonimmigrant visa, of any of the classifications specified in section 2 of this proclamation and pursuant to which the alien is seeking entry, that is valid on the effective date of this proclamation; and[… .]”

The amendment clarifies that an individual must have a valid unexpired visa in one of the above-mentioned nonimmigrant categories before June 24, 2020, in order to enter the United States. This means that individuals who have valid visas in any other non-immigrant categories (such as F, B, or O visas) cannot apply for a visa in the above-mentioned categories on or after June 24, 2020.

This small variance may seem minute, but the earlier version of the Proclamation inferred that any foreign national who had never previously received H, L, or J visa status could apply for such status on or after June 24, 2020. This amendment terminates that loophole.

The amendment does not alter the Proclamation with respect to travel for Canadian citizens. Except for E-1 and E-2 visas, Canadians are exempt from applying for visas at U.S. embassies or consulates. Therefore, the Proclamation does not apply to Canadian citizens, and Canadians may continue to seek to enter the United States in H or L status based on new approval notices, or J-1 status with a valid DS-2019.

USCIS Extends Flexibility for Responding to USCIS Requests

In response to the ongoing COVID-19 pandemic, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will continue to provide special flexibilities originally granted on March 30, 2020, to allow additional time to respond to the following USCIS requests:

    • Requests for Evidence;
    • Continuations to Request Evidence (N-14);
    • Notices of Intent to Deny;
    • Notices of Intent to Revoke;
    • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
    • Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); or
    • Filing date requirements for Form I-290B, Notice of Appeal or Motion.

The additional time for responding to agency requests applies only to those requests issued between March 1 and September 11, 2020.

USCIS will continue to give petitioners and applicants an additional 60 calendar days from the due date to respond to the above requests and notices before taking any action. Further, USCIS will consider Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before the agency will finalize any action on those matters.

Due to Budgetary Limitations, USCIS Has Furloughed Many of Its Employees

Even though USCIS receives much of its funding through filing fees, the agency is feeling the effects of the current economic crisis caused by COVID-19. The USCIS will furlough more than 13,000 members of its workforce starting in July. USCIS reports that there has been a dramatic drop in the number of cases received by the agency due to COVID-19, triggering a need for furlough. It is expected that this furloughing could cause longer delays in the adjudication of all types of petitions and applications filed with USCIS, from employment- to family-based filings.

OFLC Publishes New Wage Data Effective from July 1, 2020

The Office of Foreign Labor Certifications (“OFLC”) of the U.S. Department of Labor (“DOL”) published the latest prevailing wage data from the Occupational Employment Survey (“OES”) as generated by the Bureau of Labor Statistics for July 1, 2020, through June 30, 2021. The OES wage data is used as the main source to determine prevailing wages for H-1B and H-2 work authorizations, as well as for filings for the Program Electronic Review Management (“PERM”) Labor Certification with the DOL. Any new H-1B, H-2, or PERM Labor Certifications to be filed on or after July 1, 2020, may require updated OES wage information.

As featured on #WorkforceWednesday: This week, we finally have some guidance from the Occupational Safety and Health Administration (OSHA), and big employment law changes in Virginia go into effect.

Video: YouTubeVimeoMP4Instagram.

July 1, 2020 represents a milestone for Virginia employers.  As we previously reported, nearly two dozen new employment laws take effect, including the Virginia Values Act.  In addition, all of Virginia enters Phase Three of Governor Ralph Northam’s Safer at Home plan to reopen the economy in light of the COVID-19 pandemic.

Changes to Virginia Employment Law

Employers with Virginia operations should take note of the following important changes:

  1. Sexual Orientation, Gender Identity, Military Status, and Pregnancy: The Virginia Values Act amended the Virginia Human Rights Act (“VHRA”) to, among other things, prohibit workplace discrimination on the basis of sexual orientation, gender identity, and military status. A separate amendment requires employers to make reasonable accommodations for the known limitations of an employee related to pregnancy, childbirth, or related medical conditions, including lactation.
  2. VHRA Expanded Coverage: The Virginia Values Act vastly expands the scope of the Virginia Human Rights Act. While the prior version of the VHRA applied to only those employers with between five and 14 employees, the law now covers all employers with 15 or more employees.  However, for purposes of unlawful discharge claims due to alleged discrimination (other than age), the law extends to all employers with more than five employees.
  3. Violations of Wage Payment Law: New laws create private rights of action for employees asserting violations of Virginia’s wage payment law, Virginia Code 40.1-29, and for employees claiming they have been discriminated or retaliated against for filing a complaint or participating in a proceeding involving allegations of unpaid wages.
  4. Some Non-Competes Prohibited: Virginia now prohibits employers from entering into or enforcing non-compete agreements with so-called “low-wage employees,” e., those whose average weekly earnings are less than the average weekly wage of employees currently in Virginia ($1,204 as of Q4 2019).
  5. Worker Misclassification: In an effort to reduce worker misclassification, Virginia law now provides a private right of action for individuals who allege that they have been misclassified as independent contractors, and individuals may bring separate claims for retaliation if they report alleged misclassification.
  6. “Ban the Box”: Virginia has “banned the box,” and thus employers may no longer ask applicants to disclose information about arrests, criminal charges, or convictions for simple marijuana possession during the hiring process.

We detailed these changes in a recent webinar that can be accessed here.

Keys to Phase Three Reopening

While some states have slowed reopening, Virginia has proceeded to Phase Three.  As detailed in Executive Order No. 67, business requirements for Phase Three remain similar to those in Phase Two, which we previously covered.  Employers should be mindful of the following key requirements:

  • Foodservice Establishments must, among other things:
    • limit all parties, whether seated together or across multiple tables, to 250 patrons or less;
    • keep bar areas closed;
    • if opening buffets to self-service, continuously monitor the buffet with trained staff, change serving utensils at least hourly, provide hand sanitizer, and require the use of barriers such as gloves or deli tissue to touch utensils; and
    • require employees working in customer-facing areas to wear face coverings.
  • Nonessential Retail Establishments must, among other things:
    • maintain six feet of social/physical distancing, despite no limits on occupancy; and
    • require employees working in customer-facing areas to wear face coverings.
  • Fitness and Exercise Facilities; Swimming Pools must, among other things:
    • limit occupancy to no more than 75% of the lowest occupancy load on the certificate of occupancy, while maintaining at least ten feet of social/physical distancing as much as possible;
    • screen patrons for COVID-19 symptoms as a condition of entry;
    • ensure that the total number of attendees in all group exercise and fitness classes does not exceed the lesser of 75% of the minimum occupancy load or 250 patrons, members, and guests;
    • keep closed hot tubs, spas, slash pads, spray pools, and interactive play features, and there can be no operation of any equipment that cannot be thoroughly disinfected between uses (e.g., climbing rope, exercise bands);
    • open indoor and outdoor swimming pools at up to 75% occupancy, and free swim is allowed; and
    • require employees working in customer-facing areas to wear face coverings.
  • Personal Care and Personal Grooming services, which include beauty salons, barbershops, spas, massage centers, tanning salons, and tattoo shops, must, among other things:
    • stagger appointments, although no occupancy limits are imposed;
    • provide customers with face coverings and/or require face coverings to be worn; and
    • maintain a list of names, contact information, and date and time served of each customer.
  • Recreational and Entertainment Businesses, including outdoor performing arts venues, outdoor concert venues, outdoor sports venues, outdoor movie theaters, museums, aquariums, zoos, and botanical gardens, must, among other things:
    • limit the total number of attendees (including attendees and participants) to the lesser of 50% of the occupancy load of the venue or 1,000 persons;
    • install visible markers for queue lines that separate people by six feet of physical distance;
    • create a guest flow plan of modified queue lines into and within the facility, determining any areas likely to become bottlenecks or pinch points and adjusting guest flow accordingly;
    • reconfigure seating arrangements to allow six feet of distance between guests; and
    • create and display physical distancing communication tools.

All such businesses must post signs prohibiting entrance to individuals with a fever or symptoms of COVID-19, or known exposure to COVID-19 in the prior 14 days, and signs that provide public health reminders (e.g., social distancing, staying home if sick).

The Phase Three guidelines also provide best practices for employers to consider.  Further, in addition to the above industries, the guidelines provide reopening requirements for farmers markets, recreational sports, campgrounds and overnight summer camps, religious services, horse and other livestock shows, horse racing racetracks, and outdoor motor speedways.

Finally, Executive Order No. 63 continues to apply: face coverings must be worn when patronizing a business or inside public buildings.

*          *          *

Epstein Becker & Green, P.C. continues to monitor developments in the DMV and throughout the country.  Readers may contact the authors or their EBG attorney with any questions or needs for assistance in reopening or addressing any other COVID-19-related issue.

Last week, Illinois moved in to “Phase 4” of the state’s five-stage Restore Illinois Plan (the “Plan”). As part of this transition, the Illinois Department of Commerce and Economic Opportunity issued updated, industry-specific Phase 4 Guidelines (the “Guidelines”).

From an employer compliance standpoint, the transition from Phase 3 to 4 is not a radical change. Rather, the transition primarily involves loosened restrictions for already open businesses, and the reopening of additional industries (such as indoor recreation facilities like bowling alleys and skating rinks). Social distancing and other guidelines introduced in Phase 3 remain in effect. For an in-depth review of these guidelines, please see our advisory on Illinois and Chicago’s Phase 3 Reopening Guidance.

One notable change in the updated Guidelines is that to the extent that there was ambiguity in Phase 3 about whether health screenings were required to be “in person,” the updated guidance makes clear that “virtual screenings” are permitted. Employers should also note, from an enforcement perspective, that in its Workplace Health Safety Guidance, the Illinois Department of Public Health is now encouraging employees who have COVID-19 related-concerns about the safety of their work environment to contact the Workplace Rights Bureau of the Illinois Attorney General’s Office.

Chicago, meanwhile, also issued its own Phase IV Guidelines, which are part of the city’s Be Safe reopening framework. Similar to the Illinois Guidelines, Chicago’s guidelines loosen restrictions for various industries, reopen additional industries (such as, gyms and indoor dining), and recommend that employers continue to ensure employees stay home when sick and follow other applicable health safeguarding measures (e.g., wearing face coverings and maintaining social distance).

Illinois employers should continue to carefully review the guidance relating to their specific industry and determine what steps they need to take in Phase 4 to be compliant with Illinois and, if applicable, Chicago guidelines.  As the circumstances surrounding the current pandemic evolve, so, too, will the applicable guidance. For additional recommendations, see our Act Now Advisory on Phase 3.

For more information about this post, please contact:

Peter A. Steinmeyer
Chicago
312-499-1417
psteinmeyer@ebglaw.com

Kellie Y. Chen
Chicago
312-499-1444
kchen@ebglaw.com

 

On June 22, 2020, New Jersey Governor Phil Murphy issued Executive Order 156  (“EO 156”), which, effective immediately, increases the permissible number of attendees at indoor and outdoor gatherings from the limits he established in Executive Order 152  (“EO 152”) (which we wrote about here).

Specifically, pursuant to EO 156:

  • For indoor gatherings, the number of individuals shall be limited to 25% of the capacity of the room in which it takes place, “but regardless of the capacity of the room, such limit shall never be larger than 100 persons or smaller than 10 persons”; The “smaller than 10 persons” language, which was also used in EO 152, seems intended to permit indoor gatherings of 9 or fewer persons, regardless of room size).
  • For outdoor gatherings, the number of individuals shall be limited to 250 persons or fewer.

All other requirements for indoor and outdoor gatherings contained in EO 152 (e.g. face coverings, social distancing, contactless payment options, no sharing of equipment other than by family) remain in effect. In addition,  EO 156 states that the requirements in prior Executive or Administrative Orders or agency directives regarding gathering limits are amended to reflect the rules on gatherings stated in EO 156, including, for example, the limit on occupancy on personal care premises, which was subject to the indoor gathering limit under Division of Consumer Affairs Administrative Order No. 2020-09 (which we wrote about here).

EO 156 also clarifies that for purposes of prior Executive Order 150 (concerning outdoor dining, which we wrote about here), “outdoor areas shall be defined as open air spaces without a fixed roof, besides a temporary or seasonal awning or cover.”

Featured in #WorkforceWednesday:  As businesses across the United States open up, workers may increasingly turn to unions to help support their safety. Employers should take steps to properly prepare for this resurgence in union activity. Attorney RyAnn Hooper explains more.

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