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NJ CAR Provides Additional Guidance Regarding Use of Face Masks In The Dealership

May 22, 2020

NJ CAR recently received member inquiries regarding employees’ use of face coverings and gloves in dealer showrooms and service departments. This bulletin serves to provide NJ CAR’s interpretation of those requirements.

By way of background, on March 21, 2020, at the outset of the COVID-19 crisis, Governor Murphy issued Executive Order 107 (“E.O. 107”), which imposed various restrictions on retail business in New Jersey to stop the spread of the virus. By way of E.O. 107, essential retail businesses, which included dealer service departments, were still permitted to operate, but were required to “abide by social distancing practices to the extent practicable while providing essential services.” (Emphasis added). However, E.O. 107 imposed no express requirement that employees or customers wear face coverings or gloves while on the premises of essential retail businesses.

Thereafter, on April 8, 2020, in the depths of the crisis, the Governor issued Executive Order 122 (“E.O. 122”), which imposed heightened social distancing requirements for essential retail businesses due to the severity of the outbreak. E.O. 122 specifically required employees and customers of essential retail businesses to wear cloth face coverings “while on the premises” (with limited exceptions for individuals with prohibitive health conditions or children under two years of age). E.O. 122 also required employees to wear gloves when in contact with customers or goods. Further, E.O. 122 required essential retail businesses to provide their employees with cloth face coverings and gloves. However, employees were permitted to wear their own surgical-grade masks if they already owned them or if employees were already required to wear masks due to the nature of their work. These heightened requirements for essential retail businesses were imposed due to the Centers for Disease Control and Prevention’s (“CDC”) recommendation that everyone wear cloth face coverings in public settings where social distancing measures are difficult to maintain.

Recently, on May 19, 2020, in response to NJ CAR’s lobbying efforts, the Governor’s Office issued Administrative Order 2020-13 (“A.O. 2020-13”), which included dealers’ retail showrooms on the list of essential businesses permitted to operate during the pandemic. A.O. 2020-13 required all retail sales activity in showrooms to be “by appointment only”, and reiterated the face covering and glove requirements of E.O. 122, set forth above. Notably, A.O. 2020-13 mirrors E.O. 122 by explicitly requiring car dealerships to “[r]equire workers and customers to wear cloth face coverings while on the premises.”

There has been some confusion about whether dealer employees can stop wearing face masks when customers are no longer in the store. While the above-described Orders do not directly address this question, a conservative reading of the Orders suggests that masks must always be worn by employees while on the premises of the dealership. Also, it is worth nothing that E.O. 122 explicitly incorporates the CDC’s recommendation that everyone wear face coverings in public settings where social distance is difficult to maintain because face masks protect the wearer and others in case the wearer is asymptomatic. It is also important to note that the Occupational Safety and Health Administration (“OSHA”) recommends that, given the medium exposure risk to retail workers, retail businesses should allow employees to wear masks over their nose and mouth to prevent the spread of COVID-19. In light of the applicable CDC guidance upon which the Governor’s Orders were based, along with the customer-facing nature of dealer retail and service operations, E.O. 122’s and A.O. 2020-13’s face covering requirements appear to apply at all times an employee is on the dealership’s premises. Gloves, on the other hand, are only required to be worn when employees are in contact with customers or goods.

Disclaimer:  NJ CAR believes this interpretation to be correct based on the current Orders issued by the Governor’s Office. However, as additional Orders are released, this interpretation is subject to change. Accordingly, dealers should continue to review NJ CAR’s on-going updates regarding Executive and Administrative Orders governing dealer operations during the pandemic.

Furthermore, this interpretation does not provide, and is not intended to constitute, legal advice. All content is for general informational purposes only. As necessary and appropriate, dealers should consult an attorney familiar with their dealership’s operations to obtain advice regarding any specific legal matters or issues.