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New Jersey Executive Order Mandates Workplace COVID-19 Symptom Screenings

On October 28, 2020, New Jersey Governor Phil Murphy signed Executive Order 192, which requires New Jersey employers to conduct COVID-19 symptom screenings at the worksite.

The measure also implements other worksite safety precautions related to the coronavirus pandemic. The new requirements, which take effect today, are the first state action of this kind nationwide.

As of 6:00 am, November 5, 2020, every business, non-profit, and governmental or educational entity that requires or permits employees to be physically present at a worksite in the state must take steps to protect employees, customers, and all others who come into physical contact with its operations.

The requirements specific to employees are as follows:

  • Before each shift, employers must conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and health questionnaires, consistent with the Centers for Disease Control and Prevention (CDC) guidance.
  • Employers must immediately separate and send home employees who appear to have symptoms, as defined by the CDC, consistent with COVID-19 illness upon arrival at work or who become sick during the day. Employers subject to the New Jersey Earned Sick Leave Law, New Jersey Family Leave Act, and or federal leave laws must continue to follow the law's requirements, including by allowing individuals to use accrued leave in the manner permitted by law and employer policy.
  • Promptly notify all employees of any known exposure to COVID-19 at the worksite.
  • Require that individuals at the worksite maintain at least six feet of distance from one another to the maximum extent possible.
  • Ensure that employees who cannot maintain physical distance wear masks and install physical barriers between workstations wherever possible. Employers may permit employees to remove face masks when they are situated at their workstations and are more than six feet from other individuals at the workplace or alone in a walled office.
  • Make appropriate masks available to employees at work at the employer's expense.
  • Deny entry to the worksite to any employee who declines to wear a face mask, except when doing so would violate State or federal law. Suppose an employee cannot wear a mask because of a disability. In that case, an employer may, consistent with the Americans with Disabilities Act (ADA) or New Jersey Law Against Discrimination (NJLAD), provide the employee with a reasonable accommodation unless doing so would be an undue hardship on the employer's operations. An employer may require employees to produce medical documentation supporting claims that they cannot wear a face mask because of a disability.
  • Provide sanitization materials, such as hand sanitizer and sanitizing wipes to employees, customers, and visitors at no cost to those individuals.
  • Ensure that employees practice regular hand hygiene and provide employees with break time for repeated handwashing throughout the workday and access to adequate handwashing facilities. Employers may adopt policies that require employees to wear gloves in addition to regular hand hygiene. If an employer requires its employees to wear gloves while at the worksite, the employer must provide such gloves to employees.
  • Clean and disinfect the worksite per CDC guidelines when an employee has been diagnosed with COVID-19 illness.
  • Continue to follow guidelines and directives issued by the New Jersey Department of Health, the CDC, and the federal Occupational Safety and Health Administration (OSHA), as applicable, for maintaining a clean, safe, and healthy work environment.

The executive order also contains other significant requirements that concern protecting customers and other non-employees that may enter a worksite. The measure does not apply to federal government worksites located in the state, and religious institutions are exempt only to the extent that the application of the health and safety protocols would prohibit the free exercise of religion.

The state is establishing a process for accepting and investigating complaints about non-compliant employers. This process may include performing workplace inspections and issuing subpoenas for information. The state Commissioners of Health and Labor and Workforce Development will coordinate with relevant federal and state agencies, including OSHA, during this process. Penalties for employers who fail to comply may include closure orders, fines, and imprisonment for up to 12 months.

Privacy and Nondiscrimination Concerns

One question raised by the executive order is if it triggers any legal concerns from a privacy or discrimination perspective. The federal Equal Employment Opportunity Commission enforces workplace anti-discrimination laws, including the federal Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and nondiscrimination based on disability and rules about employer medical examinations and inquiries). According to them, these laws continue to apply during the COVID-19 pandemic. However, they do not interfere with or prevent employers from following the CDC or state/local public health authorities' guidelines and suggestions about steps employers should take regarding COVID-19. 

Also, Executive Order 192 specifies that employers must execute all requirements in a manner that is consistent with the confidentiality requirements of the ADA, NJLAD, and any other applicable laws. Employers also have to follow any other related guidance from the EEOC and the New Jersey Division on Civil Rights.

These measures all allow employers to take employees' temperatures and to do COVID-19 symptom checks onsite. Employers may also ask such employees if they are experiencing symptoms of the pandemic virus. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace.

State and federal privacy and nondiscrimination measures do not interfere with employers following this advice. Furthermore, employers may ask for disability-related medical documentation regarding the state's mask requirement and require doctors notes from all employees diagnosed with COVID-19 before allowing them to return to work.

Employers do need to be mindful of federal requirements regarding the confidentiality of employee medical information. The ADA requires all medical information about a particular employee to be stored separately from the employee's personnel file to limit access to this confidential information. An employer may store all medical information related to COVID-19 in any existing medical files, but not their personnel file.

Information that must go in the separately stored employee medical record includes an employee's statement that he has the disease or suspects he has the disease, or the employer's notes or other documentation from questioning an employee about symptoms.

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