Tracking diversity and inclusion efforts on a global basis is often a challenging task for in-house legal, human resources, and diversity and inclusion teams.  While employers may be interested in collecting applicants’ and/or employees’ diversity information for worthy reasons, such an effort is a fertile ground for potential litigation involving data privacy violations and discrimination claims.

Risks of Violating Data Privacy Requirements

Globally, diversity information typically constitutes personal data (and, in many jurisdictions, sensitive personal information) and therefore will be subject to the general privacy law requirements in each jurisdiction related to the collection, processing, use and transfer of personal and/or sensitive personal information.  Sensitive personal information includes racial or ethnic origin and sexual orientation, among other personal data.  Generally, to ensure that employers’ processing of sensitive personal information is lawful, employers must require data subjects (i.e., applicants and/or employees) to provide explicit consent.  It also is necessary to consider:  (a) the fact that responses are voluntary is sufficient to comply with any requirements to obtain consent, particularly because consent is viewed skeptically in the employment context in many jurisdictions; and (b) disclosures likely will be required regarding how the information will be processed or used and where, to whom and for what purposes it may be transferred.

Potential Discrimination Claims

When collecting diversity information of an international workforce, many questions that employers seek to ask can raise issues of discrimination.  This is the case even when such diversity questions are legally permitted.  It is essential, therefore, that employers always:  (a) have a legitimate justification to ask such questions; (b) communicate to individuals that none of the answers will be used for decisional purposes; and (c) inform individuals that they have the right not to answer (and/or provide individuals with the option to select “other”).  Employers should be careful to avoid using any collected information in a manner that could be perceived as discriminatory.  The primary concern is that as soon as employers collect any diversity information from applicants or employees, and potential employees or employees experience a negative consequence (e.g., applicants are not hired or an offer is retracted, or employees are not promoted or are terminated), the likelihood greatly increases that potential employees or employees will claim that such a decision was due to a protected category and therefore is discriminatory.  As such, to reduce the risk of discrimination claims, the recommended approach is for employers to collect this diversity information from employees (for those employees who volunteer to provide it) on a completely anonymous basis, ideally through a third party (or, in the alternative, a company department wholly unrelated to and disconnected from any hiring and employment decision-making).  The identity of all individuals should not be revealed or determined through the collection of the information.  Even on this anonymized basis, however, it is a best practice that this information not be collected until after an employee is hired.

Risk-Based Analysis

Around the world, whether employers may ask individuals diversity-related questions often is not a simple “Yes” or “No” determination.  The analysis is nuanced because countries have different cultures, histories and sensitivities that affect workplaces and the employment relationship.  As such, when jurisdictions do not provide specifically by law whether certain diversity information may be collected, multinational employers may consider developing a risk-based analysis that assesses the need for the information, as well as the underlying purpose for and reasoning behind collecting this diversity information.  Such a risk-based analysis considers factors in addition to the simple legal bases for collecting diversity information.  Several questions and issues may affect this analysis including, but not limited to, the following:

  • Will the collected information be aggregated and not used by any managers during the hiring process or otherwise in making any employment-related decisions?
  • Will the collected information be gathered in a location where it only can be accessed by the diversity and inclusion team?
  • Will the information only be used to track employers’ progress in its diversity and inclusion efforts?  In addition, will this be communicated to applicants and/or employees who are being asked to provide such information?
  • Will the data be obtained exclusively to enable employers to track their success in attracting and retaining diverse job candidates, from which this can then presumably measure their success in due course by contrasting that data with its actual workforce?
  • Would employers like to take a progressive approach regarding diversity and inclusion and “push the envelope” in the area of diversity and inclusion?  In such case, employers have a bit more of an appetite for risk in the effort to be more progressive.

In the end, employers must consider (i) whether they are equipped from a data privacy perspective to collect individuals’ personal information and (ii) the underlying purpose of the diversity collection effort.  The answers to these questions will help employers assess whether they are in a position to commit effectively to collecting applicants’ and/or employees’ diversity information.

Featured in #WorkforceWednesday: Employers are encouraging employees to use their vacation time this summer to avoid a crush of end-of-year vacations. But what happens when an employee vacations in a COVID-19 “hotspot”?  Attorney Nancy Gunzenhauser Popper explains.

Video: YouTubeVimeoMP4Instagram.

As employers begin to develop and implement plans for reopening and staff return to the workplace, they should be mindful of industry-specific requirements and guidance, which may apply where they operate.  Following are some examples that typify the sorts of industry-related requirements various states and municipalities have implemented:

  • Connecticut’s reopening requirements for hotels and restaurants overlap, but are not identical. For example, both hotels and indoor sections of restaurants may welcome guests at up to 50 percent capacity, and both require that non-essential amenities (e.g., mini-bars in hotels and dance floors in restaurants) remain closed.  Further, in hotels, room deliveries must be bagged and left at the front door with a knock to notify guests.  In addition, hotel employees are prohibited from entering guest rooms while guests are present (e.g., no in-room bellhops).  For restaurants, patrons must use no-touch or disposable menus, or menus must be sanitized between each use.  The state permits bar seating provided there is no active work being done behind the bar, or, alternatively, where a barrier has been installed to separate customers from the bartenders.
  • Illinois permits health and fitness centers to operate at up to 50 percent occupancy. Workout stations must allow for 6-feet social distancing without a barrier, or 3-feet with a barrier.  In addition, classes are limited to no more than 50 participants; masks should be worn when not exercising.  For personal care services (e.g., hair salons and barbershops) services are limited to those that can be performed while the customer and employee are wearing face coverings, and, if services require the customer to remove their mask, then the employee must wear both a face mask and eye protection.
  • In New Jersey, under Governor Phil Murphy’s Executive Order 157, retailers must limit occupancy of any indoor premises to 50 percent of the stated maximum store capacity, excluding the retail establishment’s employees. Indoor recreational and entertainment businesses, however, must limit the number of patrons in any indoor premises to 25 percent of the stated maximum capacity.  Some New Jersey industries must adhere to additional requirements imposed by any relevant state entity.  For example, casinos must comply with requirements issued by the New Jersey Racing Commission and the New Jersey Office of Emergency Management, and cosmetology and massage business must comply with Administrative Order 2020-09 entered by the Commissioner of the Division of Consumer Affairs.

Epstein, Becker & Green, P.C. is continuing to monitor these developments, and ways in which these reopening measures and guidelines throughout the country will impact employers.  We will provide further updates as they become available.

On July 13, 2020, the New York City Health Department released a COVID-19 Face Coverings Frequently Asked Questions document (“FAQs”), encouraging anyone in New York City to wear a face covering in any indoor setting that is not their home, even if proper social distancing, i.e., 6 feet of separation, can be maintained.  The recommendation comes as the City continues to reopen and more people are returning to the workplace.

The FAQs reiterate New York State’s requirement (per various Executive Orders) that face coverings be worn at all times when unable to maintain proper social distancing (such as, on public transportation).  Although the FAQs for wearing face coverings in shared indoor spaces is a recommendation and not a requirement (and does not modify the current Phase Two office-based work guidelines under the state’s New York Forward re-opening plan), employers may nevertheless wish to consider requiring that employees and visitors wear face coverings in all common areas and shared spaces, even where social distancing can be maintained.  Keep in mind, New York employers must provide face coverings to employees at no cost.

As featured in #WorkforceWednesday: The latest FAQs from OSHA recommend wearing face masks, among other suggestions, for employees returning to work. Attorney Robert J. O’Hara discusses the significance of OSHA’s decision to issue recommendations, rather than guidance, and how rules on face masks in the office may differ at the state and local levels.

Video: YouTubeVimeoMP4.

On June 15, 2020, and June 24, 2020, New York Governor Andrew Cuomo issued two Executive Orders (“EO”) numbers 202.45 and 205, which address COVID-19 travel-related restrictions. EO 202.45 temporarily modifies New York State’s pandemic-related Sick Leave Law to prohibit employees from receiving paid sick leave benefits if, as of June 25, 2020, they travel to a “restricted state” for non-work related reasons and contract COVID-19. EO 205 (the “Travel Advisory”) imposes a 14-day quarantine requirement on travelers from a “restricted state” entering New York. For the purposes of both orders, a “restricted state” is a state with a COVID-19 positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a seven day rolling average, based on data provided by the states.

The list of “Restricted States” is posted on New York’s COVID-19 Travel Advisory website. Data is reviewed weekly to determine whether a particular state should be added or deleted from the list.  As of July 14, 2020, the following 22 states have been designated “restricted states”:

Alabama Kansas Oklahoma
Arkansas Louisiana South Carolina
Arizona Minnesota Tennessee
California Mississippi Texas
Florida New Mexico Utah
Georgia North Carolina Wisconsin
Iowa Nevada
Idaho Ohio

The Travel Advisory requires travelers to quarantine for 14 days from the date they were in a restricted state.  The quarantine mandate does not apply, however, to individuals who have passed through restricted states for a “limited duration,” i.e., less than 24 hours. Examples of “limited duration travel” include “stopping at rest stops for vehicles, buses, and/or trains; or lay-overs for air travel, bus travel, or train travel.”

Quarantine Requirements

Pursuant to the Travel Advisory, the New York Department of Health (“DOH”) released Guidance providing the following requirements for a quarantined individual:

  • The individual must not leave the quarters that they have identified as suitable for his or her quarantine.
  • The individual must be situated in separate quarters with a separate bathroom facility for each individual or family group that is quarantined, with access to a sink, soap, paper towels and, in any shared bathroom, cleaning supplies (e.g., household cleaning wipes and bleach).
  • The quarters must have a supply of face coverings, to be worn if the individual becomes symptomatic.
  • The quarantined individual must implement a self-screening procedure in his or her separate quarters for monitoring temperature and the development of other COVID-19 symptoms.
  • The individual must self-quarantine from household members as soon as he or she develops a fever (100.0° or higher) or other COVID-19 symptoms, such as in a separate room with a door. Given that an exposed person might become ill while sleeping, the exposed person must sleep in a separate bedroom from other household members.
  • Food must be delivered to the quarantined person’s quarters, and garbage must be bagged and left outside for routine pick up (special handling is not required).
  • A household member or other person must be designated to notify a nearby medical facility, if the individual begins to experience more than mild symptoms and appears to require medical assistance.
  • The quarters must be secure against unauthorized access.

 Limited Exemption for “Essential Workers”

The Guidance provides a limited exception for “essential workers,” based on the duration of time they spend in restricted states, as well as the intended length of time they plan to be in New York. An “essential worker” is (1) any individual employed by an entity included in the Empire State Development Essential Business list; or (2) “any individual who meets the COVID-19 testing criteria, pursuant to their status as either an individual who is employed as a health care worker, first responder, or in any position within a nursing home, long-term care facility, or other congregate care setting, or an individual who is employed as an essential employee who directly interacts with the public while working,” under the DOH May 31, 2020 Protocol for COVID-19 Testing, or (3) “any other worker deemed such by the Commissioner of Health.”

The Guidance does not state how the exceptions for essential workers are limited based on the duration of time in restricted states. It does, however, specify the requirements for essential workers based on how long they remain in New York and establishes varying requirements for “Short Term” (i.e., less than 12 hours), “Medium Term” (i.e., less than 36 hours) and “Long Term” (i.e., several days) stays. By way of summary:

  • Short Term travelers (e.g., essential workers delivering goods, awaiting flight layovers and other short duration activities) should stay in their vehicle and/or limit personal exposure by avoiding public spaces, monitor their temperature and signs of symptoms, wear a face covering when in public, maintain social distance, clean and disinfect workspaces, and avoid extended periods in public, contact with strangers and large congregate settings.
  • Medium Term travelers (e.g. essential workers delivering multiple goods, awaiting a longer flight layover or other medium duration activities) should monitor their temperature and signs of symptoms, wear a face covering when in public, maintain social distance, clean and disinfect workspaces, and avoid public spaces as well as extended periods in public and congregate settings.
  • Long Term travelers (e.g., essential workers working on longer projects, fulfilling extended employment obligations and other longer duration activities) should seek diagnostic testing within 24 hours of arrival to ensure they are not COVID-19 positive; in addition, for at least 7 days they must avoid extended periods in public, contact with strangers and large congregate settings; and for at least 14 days they should monitor temperature and signs of symptoms, wear a face covering when in public maintain social distance, and clean and disinfect workspaces.

Upon their return to New York, essential workers based in New York who travel to a restricted state, must, along with their employers, comply with previously issued DOH guidance for employees returning to work after a suspected or confirmed case of COVID-19 or after close contact with a person with COVID-19, unless the DOH guidance is superseded by specific industry guidance.

Amendment of New York State’s Sick Leave Law

EO 202.45 temporarily modifies New York State’s Sick Leave Law for COVID-19 to make employees who voluntarily travel to a restricted state after June 25, 2020 ineligible for New York paid sick leave benefits, unless the travel was taken “as part of the employee’s employment or at the direction of the employee’s employer.” The Sick Leave Law already exempted employees who traveled to countries with a level two or three travel health designation from the Centers for Disease Control and Prevention.

As summer kicks into high gear, and the Americans with Disabilities Act’s 30th anniversary looms large at the end of this month, businesses in many jurisdictions are in the process of gradually reopening to the public.

And if the long and difficult spring wasn’t trying enough, businesses now face yet another challenge — balancing maintaining the safety of employees and patrons against complying with Title III of the ADA, and applicable state and local laws, which can significantly vary depending on the jurisdiction.

While in many ways the world keeps changing, some things never do — namely, the plaintiffs bar’s continued pursuit of ADA lawsuits involving both brick-and-mortar locations and digital technology. Moreover, the COVID-19 pandemic has also brought new issues to the forefront — including the filing of some lawsuits alleging novel theories.

Below, we round up some of the many accessibility issues that businesses should keep in mind as they navigate through this new era in hopes of successfully reopening in the new normal.

With businesses increasingly relying on technology, lawsuits regarding accessible technology begin to surge again.

Through personal experience, most businesses are all too aware of the seemingly endless stream of lawsuits filed against companies for their alleged failure to provide websites that are accessible to individuals who are blind/have low vision or are deaf/hard of hearing. Although the number of federal lawsuits has arguably plateaued to some extent, the number of cases pursued in California state court, and through private demand letters, most certainly has not.

As plaintiffs counsel now argue that in this time of COVID-19 website accessibility is more urgent than ever, companies’ risks of website accessibility lawsuits are greater than ever.

This risk is only heightened — particularly for those operating in California — following a slew of recent decisions, including one from the California Court of Appeals just last month in Martinez v. San Diego County Credit Union reversing a trial court’s decision which found that a credit union’s website, which allowed users to find its physical banking location, was not a place of public accommodation.

In its decision, the appellate court reaffirmed that under California state law — the Unruh Civil Rights Act — where a business has a nexus between its website and a physical place of public accommodation, it is required to make the website accessible to individuals who are blind or have low vision, which is consistent with the position taken by California federal courts when considering the same issue under Title III.

The obligation to provide accessible technology to individuals with disabilities goes beyond website accessibility. For example:

  • Businesses must provide accessibility when relying upon the use of touchscreen devices. Depending upon the purpose of the device — e.g., for cashless methods of payment — this may involve substantial conformance with the Web Content Accessibility Guidelines 2.1 at Levels A and AA, but it might also involve providing audio-enabled guidance, braille/tactile keypads and/or swipe gesture-enabled operations, as well as mounting such devices at appropriate heights, within necessary reach ranges, and with sufficient clear floor space.
  • If attempting to utilize touch-free methods for opening doors, businesses need to do so in a way that maintains access for individuals using mobility devices, such as wheelchairs — e.g., via the use of motion-sensor devices.
  • For individuals who are deaf or hard of hearing, businesses should provide captioning or transcripts for videos, and consider policies for methods of providing access to captioning for older videos.

Lawsuits against businesses that require patrons to wear masks are a potentially ripe new area for litigation.

With an increasing number of jurisdictions now mandating that individuals wear face masks in public to help curb the spread of COVID-19, many businesses are also requiring customers to cover their faces as a safety measure when entering their physical locations for the same reason.

While many businesses generally can, and currently do, maintain facially neutral policies of refusing service to a customer who refuses to wear a face mask, businesses must also consider that there may be situations where a customer cannot wear a mask due to a legitimate health reason, such as a respiratory condition that does not allow them to have their breathing restricted.

In such an instance, we initially advised that the business should attempt to accommodate that customer in an alternative manner that would continue to protect its employees and other patrons, while also providing the customer with service — for example, providing curbside pickup, no-contact delivery or assistance via online store services.

However, the ability to establish uniform companywide policies for handling such situations has been made more challenging because many of the executive orders recently issued by state and local governments requiring masks in public accommodations often differ on how businesses should respond to individuals who cannot wear masks because of a disability or a medical condition.

As such, it is imperative that businesses be aware of the specific state and local rules in the jurisdictions in which they are operating that may create or limit their obligations, options or defenses if they deny service — and deviate from any baseline policies, as needed in specific jurisdictions. It is also more important than ever that staff working in these stores are trained regarding accessibility policies and proper sensitivity and etiquette so that they know how to respond when a customer says that they are unable to wear a mask, or require an accommodation.

The difficulties posed by these evolving obligations is clearly seen by some industrious plaintiffs counsel as ripe for litigation. In the last few months, we have begun to see lawsuits filed alleging that places of public accommodations have violated the ADA by refusing to accommodate customers with respiratory-related disabilities through the enforcement of a company policy requiring all shoppers to wear masks.

In these cases, the customers alleged that they are unable to wear masks due to an alleged disability — they walked into the store, an employee asked where their mask was, and when they responded that they could not wear one because of a medical condition, they were refused entry.

The plaintiffs assert that not only does this violate the ADA, but also state laws/guidance in those jurisdictions providing that businesses are required to allow individuals who cannot wear masks due to a medical condition to enter the premises, without the need to provide the business with documentation of their inability to wear a mask for medical reasons.

In a jurisdiction without such a restrictive mask order, a potential solution businesses may consider would be providing any patron who is unable to, or objects to, wearing a mask with alternative means of service — such as curbside pickup and free delivery.

Before assuming that this is sufficient to satisfy their obligations, however, businesses must be aware of the specific requirements of each jurisdiction in which they are operating, and the need to modify their baseline policies and practices accordingly in order to remain in compliance with state/local orders which may impose additional restrictions/obligations.

Be sure to provide effective communication to individuals who are deaf/hard of hearing where both parties must wear masks.

Under Title III, businesses have an obligation to provide auxiliary aids and services necessary to achieve effective communication for individuals with disabilities. Due to the current need for employees and patrons to wear masks, businesses must consider the need for alternative methods of achieving effective communication for individuals who are deaf or hard of hearing and ordinarily rely on lip reading.

In order to deal with such circumstances, businesses should consider providing disposable pens and pads, markers and dry-erase boards sanitized between every use, or methods of electronic communication, and disinfecting any shared devices between uses.

Social distancing will impact businesses’ obligations under the 2010 standards.

Further complicating the already daunting task of planning to safely reopen in a world of social distancing is the need to do so while also abiding by the technical obligations set forth by Title III’s 2010 ADA Standards for Accessible Design. The requirements set forth in the 2010 standards play an integral role in maintaining accessibility for individuals using mobility devices and who are blind.

Maintaining Accessible Routes, Dining Locations, Service/Sales Counters and Parking

As businesses, and particularly, retailers and restaurants, modify their facilities in order to enforce social distancing, it is essential that they keep in mind that the 2010 standards require them to provide individuals who use mobility devices with accessible routes throughout the location, along with necessary maneuvering clearances and clear floor space.

Accordingly, steps taken to enforce social distancing — for example, queue lines and the use of stanchions — must be taken in a way that preserves the necessary dimensions set forth by the 2010 standards and does not create improper protruding objects. Similarly, such steps cannot result in the creation of protruding objects that might harm a person who is blind without the provision of detectable warnings.

And to the extent extra signage may be added to help provide wayfinding or inform patrons of safety rules, such information must be communicated in an alternative accessible format for individuals who are blind.

As restaurants prepare to open new outdoor dining areas and/or return to some level of interior dining under social distancing restrictions, they must still take into account the 2010 standards’ requirements for the number of accessible dining locations that must be provided in areas in which customers are eating or drinking, including at the bar, and further, that those accessible dining spaces must be dispersed around different seating areas and along tables of different sizes.

Separate and apart from accessible dining surfaces requirements, the 2010 standards impose requirements for accessible (lowered) sales and service counters. Accordingly, where businesses seek to impose social distancing requirements that could require the temporary elimination of points of sale stations to increase separation at line queues — for example, restaurants’ takeout counters or retailers’ checkout locations — they must continue to provide services at those accessible counters which comply with the 2010 standards.

Along the same lines, businesses that provide parking to their patrons and are temporarily reducing the amount of parking provided to maintain social distancing must still abide by the 2010 standards’ requirements for the number and location of accessible parking spaces, as well as van-accessible parking spaces. This is another area in which some states have additional unique requirements that businesses need to be aware of.

Elevators

Any business that requires employees and patrons to use elevators in order to reach its physical location, or parts of it, has likely examined how they can transport individuals to their locations safely and effectively while trying to maximize social distancing. Many have concluded that this requires limitations to the number of people who can use the elevators at any given time.

Such restrictive occupancy limits can have a significantly negative impact on wait times for patrons using mobility devices, who may have no choice but to use elevators as opposed to stairs. In these instances, businesses may wish to consider giving priority to patrons with mobility devices, and service animals, or designating an elevator at each bank as a priority bank for such purposes. Additionally, any occupancy restrictions must be sure to comply with the applicable 2010 standards.

Conclusion

Many things in this day and age remain ever-changing and uncertain, however, the prevalence of ADA obligations and the risks of accessibility lawsuits remain a constant.

As we approach the ADA’s 30th anniversary, and businesses adjust to the new normal by continuing to develop and adopt unique safety protocols, it is essential that they continue to account for accessibility throughout their planning processes and prepare to address their obligations under Title III and its state/local counterparts to avoid high legal risk exposure.

A version of this article originally appeared in Law360: “Key COVID-19 Accessibility Issues as ADA Turns 30.”

In a recent Bloomberg Law article, we reported on legislative developments regulating the use of artificial intelligence (“AI”) in employment law decisions.  On May 11, 2020, one of the pieces of proposed legislation we discussed, Maryland’s H.B. 1202, became law without Governor Larry Hogan’s signature.  As we reported, H.B. 1202 prohibits employers from using facial recognition technology during pre-employment job interviews without the applicant’s consent.  To use facial recognition services in interviewing employees, an employer must obtain an applicant’s written consent and waiver that states the applicant’s name, the date of the interview, that the applicant consents to the use of facial recognition during the interview and that the applicant has read the waiver.  Although the law defines terms such as “facial template” and “facial recognition services,” the terms provide little guidance and leave broad gaps for interpretation.

This new workplace AI law will take effect on October 1, 2020.  Maryland employers that intend to use facial recognition technology in job interviews after that date should prepare to provide adequate notice and obtain written consent from applicants.  Employers outside of Maryland using or considering using workplace AI technologies should also take note of this development, as legislation like this can be expected in other jurisdictions going forward.

If you have any questions regarding Maryland’s H.B. 1202 or would like to discuss strategies for implementing workplace AI in a compliant manner, please contact the authors of this post or your Epstein Becker & Green, P.C. attorney.

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 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.