Alert - New Jersey Announces Shutdown of All Non-Essential Retail Businesses

New Jersey is taking the approach of carefully defining what businesses are deemed “essential” instead of defining those that are “non-essential.” The Governor explained that if a business is not on the list of essential businesses, it should assume it is non-essential. Non-retail businesses are instructed to implement a 100% work from home policy immediately. Governor Murphy said New Jersey’s 8 p.m. curfew is now essentially 24 hours a day.

Governor Murphy says the state will “take action” to enforce the new Executive Orders. E.O. 107 states that penalties for violations of the Executive Order will be imposed through N.J.S.A. App. A:9-49 50. These are disorderly conduct statutes and violations are subject to imprisonment for a term not to exceed 6 months or a fine not to exceed $1,000 or to both a fine and imprisonment, in the discretion of the court. All counties have assistant prosecutors assigned for enforcement purposes and all police have been advised as to proper charges.

The new restrictions announced today include:

• • A new Executive Order (E.O. 107) directing nearly all New Jersey residents to stay at home.
  • All non-essential retail business closed to the public effective 9 p.m. tonight, March 21, 2020.
  • Businesses critical to the COVID-19 response may stay open, including; groceries, pharmacies, medical marijuana dispensaries, medical supply stores, gas stations, auto mechanics, banks, hardware, laundromats, printing and office supply, pet stores, supplies for young children, mail and delivery shops. Restaurants, liquor stores, and bars remain open only for take-out.
  • Manufacturing, industrial, logistics, ports, heavy construction, shipping, food production, food delivery, and other commercial operations may continue operating, but as explained above, they should limit staff on site to the minimal number to ensure that essential operations can continue.
  • All other businesses must move employees to work from home.
  • E.O. 107 also cancels all gatherings including weddings and parties.
  • Second Executive Order (E.O. 108), superseding all local orders and standardizing the state response.

The following businesses are exempted from the shutdown:

• • Grocery stores, farmer’s markets and farms that sell directly to customers, and other food stores, including retailers that offer a varied assortment of foods comparable to what exists at a grocery store
  • Pharmacies and medical marijuana dispensaries
  • Medical supply stores
  • Gas stations
  • Convenience stores
  • Ancillary stores within healthcare facilities
  • Hardware and home improvement stores
  • Banks and other financial institutions
  • Laundromats and dry-cleaning services
  • Stores that principally sell supplies for children under five years
  • Pet stores
  • Liquor stores
  • Car dealerships, but only for auto maintenance and repair, and auto mechanics
  • Printing and office supply shops
  • Mail and delivery stores

The state has launched a new website to serve as a COVID-19 information hub, including guidance regarding how the new orders impact businesses. Healthcare, access to essential services for low income residents, media, police, and federal officials are exempted from the stay at home order.

New Jersey now has 1,327 positive COVID-19 test results and 16 total deaths.

*UPDATE: 

New Jersey amended their official guidance regarding seeking an exemption. They’re now advising businesses to inquire via the messenger chat on the website.

The guidance now states:

If you believe your retail business is unique and should be considered an “essential business,” you may be inquire with the Business.NJ.gov team (via the chat feature in the lower corner of this page) about submitting your business to the State Director of Emergency Management. The Director has the discretion to make additions, amendments, clarifications, exceptions, and exclusions to these lists. If your business falls into a category already exempted, or you are not a retail business, you do not need an exemption and should not pursue this option. [SIC]

https://faq.business.nj.gov/en/articles/3799035-how-do-executive-orders-no-107-and-108-on-closures-and-social-distancing-affect-my-business

Background

New Jersey has been proactive in taking legislative and executive action to contain the spread of COVID-19. On March 20, 2020, Governor Murphy signed a bill, A3848, prohibiting employers from terminating or otherwise penalizing an employee for taking time off from work at the written recommendation of a medical professional because the employee has or is likely to have an infectious disease. Upon the employee’s return from work, the employer must allow the employee to remain in the same position.

Also on March 20, 2020, Governor Murphy signed a bill, A3845, authorizing the New Jersey Economic Development Authority (NJEDA) to make grants during a state of emergency or a public health emergency declared by the Governor. The EDA will also be authorized to grant certain business documentation submission deadline extensions. The Department of Banking and Insurance issued a bulletin encouraging regulated financial entities work with and assist customers who have been adversely affected by COVID-19-related issues.

On March 19, 2020, Governor Murphy ordered the following:

• • All personal care businesses that cannot comply with social distancing (i.e., spas, nail salons, hair salons, and tattoo parlors) will close as of 8 p.m. that day
  • Social clubs will close as of 8 p.m. that day
  • Candidate petitions may be submitted electronically
  • Secretary of state is creating online petition form for voters to submit signatures for petitions to be on the ballot
  • Upcoming municipal/school elections will be moved to May 12, and all such elections will be completed only through vote by mail.
  • No changes to June 2 primary elections as of today.
  • Will be suspending removals of individuals from home as a result of eviction or foreclosure

On March 16, 2020, Governor Murphy signed Executive Order No. 104, which provides as follows:

• • Gatherings over 50 people are prohibited, excluding normal operations at airports, bus and train stations, medical facilities, offices, factories, industrial or manufacturing work, construction, mass transit, or purchase of groceries or consumer goods.
  • All schools through 12th grade are closed, whether public, private, or charter.
  • All colleges and universities are closed to in-person instruction. Waivers may be granted on a case-by-case basis for a compelling reason.
  • The Dept. of Education may allow some schools to remain open for meal service, and for other essential non-educational services, or for emergency educational or childcare services if needed after consultation with Department of Health. The Department of Education has authority to close vocational schools.
  • Local school districts, charters, and parochial schools have discretion to determine home instruction arrangements, taking into account constitutional and statutory obligations.
  • As of 8 p.m. on March 16, 2020, the following are closed:
    • Casinos
    • Racetracks
    • Gyms and fitness centers and classes
    • Entertainment centers (movie theaters, night clubs, concert venues, etc.)
  • Curfew: From 8 p.m. – 5 a.m., nonessential retail, recreational, and entertainment businesses must close. They may remain open if restrict occupancy to <50 people.
    • This excludes grocery stores, pharmacies, medical supply stores, gas stations, healthcare facilities and ancillary stores within healthcare facilities.
  • Restaurants and bars may operate during normal business hours for delivery and takeout only.
  • Director of Emergency Management (who is Superintendent of the State Police) and the AG (through the Director of Emergency Management) have discretion to control traffic.

See https://nj.gov/infobank/eo/056murphy/pdf/EO-104.pdf

*Please note that New Jersey has released an additional statement regarding non-essential businesses.

Co-authors, Jonathan Krause, partner; Michael Iaconelli, partner; and Monica Clarke Platt, associate are all members of the Litigation Department of Klehr Harrison.