Tri-State's Reopening Continues: NY & NJ Allow Outdoor Dining; Non-Essential Retail in NJ Permitted

In what is surely welcome news to many, the Tri-State (NY, NJ, and CT) area has further expanded its reopening measures to include—subject to state-mandated restrictions—outdoor dining and permitting certain "non-essential" businesses to resume operations.

As of June 8, 2020, New York City has entered Phase 1 of New York Governor Andrew Cuomo's four-phase "NY Forward" reopening plan, while other parts of the state have already entered Phase 2. As of June 10, 2020, the entirety of New York is in Phase 2 except for New York City.

Key developments we discuss in this advisory:

• (i) Outdoor dining may be part of New York State's Phase 2;
• (ii) New Jersey lifts its stay-at-home order;
• (iii) Restaurants in New Jersey may provide outdoor dining services beginning June 15, 2020; and
• (iv) Non-essential retail stores in New Jersey may reopen beginning June 15, 2020.

Outdoor Dining Under Phase 2 in New York State

Last week, Governor Cuomo announced one additional aspect to Phase 2, which is the ability for restaurants to reopen outdoor dining. As with the other industries able to reopen in New York, the New York State Department of Health has issued interim guidance for outdoor and take-out services, which the relevant businesses are expected to acknowledge through an online portal.

Furthermore, New York State has issued summary guidelines related to outdoor dining and take-out services. The guidelines mandate certain requirements relating to physical distancing, protective equipment, hygiene, cleaning, communication, and screening - and further provide for recommended best practices relating to the same.

Among the mandatory requirements, businesses must:

• Designate entrances/exits for customers and separate entrances/exits for employees, where possible;
• Establish designated areas for vendor pickups and/or deliveries, limiting contact to the extent possible;
• Limit the sharing of objects (e.g. kitchen tools, pens/pads), as well as the touching of shared surfaces (e.g. doorknobs, keypads, touch screens); or, require workers to wear gloves when in contact with shared objects or frequently touched surfaces; or, require workers to perform hand hygiene before and after contact; and
• Post signage to remind employees and patrons to adhere to proper hygiene, social distancing rules, appropriate use of PPE, and cleaning and disinfection protocols.

In addition, New York businesses must meet the minimum standards set forth in the interim guidance which addresses three broad categories: people, places, and processes. The interim guidance includes, but is not limited to:

• Requiring businesses to maintain six feet of distance between workers, unless the core activity requires otherwise;
• Requiring employees and patrons to wear face coverings, except while seated;
• Ensuring that outdoor seating is arranged such that tables are six feet away from one another and where such distance is not possible, that physical barriers of at least five feet are erected; and
• Limiting each table to the seating of a maximum of ten individuals.

New Jersey Lifts Stay-at-Home Order

Earlier today, Governor Murphy announced that he is lifting the state's stay-at-home order that was issued in March. While the stay-at-home order is lifted, Governor Murphy indicated residents should still practice social distancing and wear face coverings.

Lifting the stay-at-home order, however, does not mean that businesses can return to work as normal. As detailed below, there are specific guidelines that businesses need to meet in order to reopen.

Outdoor Dining in New Jersey

Pursuant to Governor Murphy's Executive Order, outdoor dining will be available in New Jersey, beginning on June 15, 2020, provided businesses meet the following requirements:

• Ensuring all areas designated for food and/or beverage consumption are in conformance with applicable local, state, and federal regulations;
• Limiting capacity to a number that ensures all patrons can remain six feet apart from all other patrons at all times, except for those patrons with whom they are sharing a table;
• Satisfying all standards issued by the New Jersey Department of Health (explained in more detail below);
• Ensuring that tables seating individual groups are six feet apart in all directions and that individual seats in any shared area that is not reserved for individual groups, such as an outdoor bar area, are also six feet apart in all directions;
• Prohibiting patrons from entering the indoor premises of the food or beverage establishment, except to walk through such premises when entering or exiting the food or beverage establishment in order to access the outdoor area, or to use the restroom;
• Requiring patrons to wear a face covering while inside the indoor premises of the food or beverage establishment, unless the patron has a medical reason for not doing so or is a child under two years of age; and
• Prohibiting smoking in any outdoor areas designated for the consumption of food and/or beverages. This prohibition will automatically be lifted once food or beverage establishments are permitted to offer in-person service in indoor areas.

As noted above, businesses will also have to comply with the directives of the New Jersey Department of Health in order to open for outdoor dining. Pursuant to the Department of Health's Executive Directive, food and beverage establishments must also:

• Obtain all required municipal approvals and permits before offering food and/or beverage consumption at outdoor areas;
• Post signage at the entrance that states that no one with a fever or symptoms of COVID-19 should enter the food or beverage establishment;
• Limit seating to a maximum of eight customers per table and arrange seating to achieve a minimum distance of six feet between parties;
• Rope off or otherwise mark tables, chairs and bar stools that are not to be used;
• Demarcate six feet of spacing in patron waiting areas;
• Provide physical guides, such as tape on floors, sidewalks, and signage on walls to ensure that customers remain at least six feet apart in line for the restroom or waiting for seating;
• Eliminate self-service food or drink options such as buffets, salad bars, and self-service drink stations;
• Disinfect all tables, chairs and any other shared items (menus, condiments, pens) after each use;
• Install physical barriers and partitions at cash registers, bars, host stands and other area where maintaining physical distance of six feet is difficult;
• Ensure six feet of physical distancing between workers and customers, except at the moment of payment and/or when employees are servicing the table;
• Require infection control practices, such as regular handwashing, coughing and sneezing etiquette, and proper tissue usage and disposal;
• Require frequent sanitization of high-touch areas like credit card machines, keypads, and counters to which the public and workers have access;
• Place conspicuous signage at entrance alerting staff and customers to the required six feet of physical distance; and
• Require all food or beverage establishments to have an inclement weather policy that, if triggered, would require the food or beverage establishment to adhere to Executive Order No. 125 (2020) and offer takeout or delivery service only.

The New Jersey Department of Health's Executive Directive further provides that food and beverage establishments offering outdoor dining services must implement the following as to its workforce:

• Require employees to wash and/or sanitize their hands when entering the food or beverage establishment;
• Conduct daily health checks (e.g. temperature screening and/or symptom checking) of employees safely and respectfully, and in accordance with any applicable privacy laws and regulations;
• Require employees with symptoms of COVID-19 (fever, cough, or shortness of breath) be sent home;
• Require all employees to wear face coverings, except where doing so would inhibit the individual's health, and require employees to wear gloves when in contact with customers and when handing prepared foods or serving food, utensils, and other items to customers;
• Provide all employees with face coverings and gloves;
• Provide employees break time for repeated handwashing throughout the workday; and
• Provide sanitization materials, such as hand sanitizer and sanitizing wipes to staff.

Additionally, businesses must:

• Inform customers that safety measures such as social distancing, wearing face coverings when they are away from their table and unable to social distance or when they are inside the indoor portion of the premises of the food or beverage establishment (unless the customer has a medical reason for not doing so or is a child under two years of age), and hygiene practices must be adhered to while in the food or beverage establishment;
• Encourage reservations for greater control of customer traffic/volume;
• Require customers to provide a phone number if making a reservation to facilitate contact tracing;
• Recommend customers wait in their cars or away from the food or beverage establishment while waiting for a table if outdoor wait area cannot accommodate social distancing;
• Alert customers via calls/texts to limit touching and use of shared objects such as pagers/buzzers;
• Encourage the use of digital menus;
• Decline entry to the indoor portion of the establishment to a customer who is not wearing a face covering, unless the customer has a medical reason for not doing so or is a child under two years of age; and
• Provide a hand sanitizer station for customers.

Further to New Jersey's reopening of outdoor dining, the Division of Alcoholic Beverage Control has issued a special ruling, which created a temporary COVID-19 Expansion Permit that provides for the expansion of the service of alcoholic beverages to outdoor areas, including non-contiguous property. To obtain this temporary permit, businesses should apply through POSSE ABC Online Licensing System as soon as possible.

Non-Essential Retail Stores in New Jersey

Non-essential retail businesses in New Jersey will also be permitted to reopen on June 15, 2020, provided they meet the minimum qualifications that are set forth in Governor Murphy's Executive Order 122 for essential retail businesses, which includes:

• Limiting occupancy at 50 percent of the stated maximum store capacity, if applicable, at one time;
• Establishing hours of operation, wherever possible, that permit access solely to high-risk individuals, as defined by the CDC;
• Installing 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;
• Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
• Providing employees break time for repeated handwashing throughout the workday;
• Arranging 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;
• Providing sanitization materials, such as hand sanitizer and sanitizing wipes, to staff and customers;
• Requiring frequent sanitization of high-touch areas like restrooms, credit card machines, keypads, counters, and shopping carts;
• Placing conspicuous signage at entrances and throughout the store, if applicable, alerting staff and customers to the required six feet of physical distance;
• Demarcating six feet of spacing in check-out lines to demonstrate appropriate spacing for social distancing; and
• Requiring workers and customers to wear cloth face coverings while on 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 entry to the individual, unless the business is providing medication, medical supplies, or food, in which case the business policy should provide alternate methods of pickup and/or delivery of such goods.
  
  Nothing in the stated policy should prevent workers or customers from wearing a surgical-grade mask or other more protective face covering if the individual is already in possession of such equipment, or if the business is otherwise required to provide such worker with more protective equipment due to the nature of the work involved. Where an individual declines to wear a face covering on store premises due to a medical condition that inhibits such usage, neither the retail business nor its staff shall require the individual to produce medical documentation verifying the stated condition.

Davis Wright Tremaine's attorneys remain available to help employers across New York, New Jersey, and elsewhere with their reopening process and will provide updated information as it becomes available.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.