The coronavirus and the illness that it causes, COVID-19, have made vast changes to workplaces in New Jersey, the U.S., and worldwide over the course of less than a month. Public health experts have recommended “social distancing” as a way to slow the spread of the virus while the healthcare system rushes to get ready. The governor of New Jersey has issued a series of executive orders (EOs) closing many “non-essential” businesses and instructing others to allow remote working whenever possible. The EOs direct businesses to follow public health guidelines in order to protect workers who must report to their workplaces. This raises important legal questions that have no clear answers yet.
In this environment of social distancing, what are employees’ rights if their employer requires them to come to work when their business is not “essential”? What if their employer will not allow them to work remotely, even though doing so would be feasible? What if an employer endangers employees’ health by failing to follow public health officials’ recommendations?
Executive Orders and the Effect on New Jersey Businesses
EO 104, signed on March 16, ordered certain businesses to close their facilities to the public, including gyms, movie theaters, and nightclubs. Restaurants could only remain open for take-out orders and food delivery. “Non-essential” retail businesses were ordered to cut their hours. Retail operations deemed “essential” include:
– Grocery stores;
– Healthcare facilities; and
– Gas stations.
On March 21, EO 107 partially superseded EO 104. It orders all “non-essential” retail businesses to close, and expands the list of “essential” retail businesses to include pet stores, hardware stores, laundromats, auto mechanics, mail delivery services, and others. EO 108, signed on the same day, bars local governments from modifying the list of “essential” businesses.
Many businesses do not fall under any of the categories directly addressed by the EOs. EO 107 directs all businesses to allow remote working when possible, but acknowledges that this is not possible for first responders, cashiers, utility workers, construction workers, maintenance workers, and other jobs. The EO states that employers “should make best efforts to reduce staff on site to the minimal number necessary” for “essential operations.”
Rights and Liability Under State Law
Several of the EOs note that violations of the restrictions, or aiding and abetting violations, may be penalized as a disorderly persons offense. Aiding and abetting a violation is also a disorderly persons offense. While this might serve as an incentive to follow the restrictions set forth in the EOs, it does not provide employees with any particular rights.
The New Jersey Department of Labor and Workforce Development has stated that workers whose employers refuse to close despite the governor’s orders, and who refuse to go to work as a result, may be eligible for earned sick leave and unemployment benefits. It is not clear whether worker’s compensation coverage would be available to someone whose job does not inherently involve a risk of exposure to the coronavirus. This may prove to be workers’ best option, but this remains to be seen.
Rights and Liability Under Federal Law
The Occupational Safety and Health Act (OSHA) requires employers to provide their employees with “a place of employment…free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The law does not, however, allow workers to bring a private cause of action.
If you need assistance with an employment law matter in New Jersey or New York, please contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.