By Francine Foner, Esq. and Ty Hyderally, Esq.

On March 25, 2020, Governor Murphy signed yet another Executive Order involving business restrictions as a result of the COVID-19 pandemic. Executive Order No. 110 directs that all child care centers in New Jersey must certify by Friday March 27 that they will serve as emergency child care centers of essential workers, or otherwise they must close by April 1, 2020. The intent of this measure is to “assist in flatting in the curve of COVID-19 cases, as well as provide our front-line workers with the critical services they need to get through this emergency,” said Governor Murphy.

According to the Governor’s official press release, among the directives, the Governor’s executive order directs:

• The Commissioner of the Department of Children and Families, in consultation with the Commissioners of the Departments of Education, Human Services, and Health, shall implement a plan permitting access to emergency child care services for the children of “essential persons.”
• In order to be designated as an Emergency Child Care Center, any person or organization, requesting permission to stay open or resume operations on or after April 1, 2020, shall submit the certification form to the Commissioner of Children and Families for approval by Friday, March 27, 2020. If the certification form demonstrates that it will provide child care services exclusively to “essential persons” during the school closure period, and that it will follow all applicable emergency child care standards, the Commissioner shall authorize it to remain open or resume operations as an emergency child care center.
• Any child care centers, including those as defined in this executive order, that fail to timely certify shall be closed to the public as of Wednesday, April 1, 2020, and remain closed through the school closure period. Centers shall receive notice of the Commissioner of Children and Families’ certification decision by Monday, March 30, 2020.
• Child care centers, for purposes of this order, include entities providing care on a regular basis for children aged 0-13, including licensed child care centers.
• For purposes of this order, essential persons shall include, but not be limited to: 1) Health care workers, including staff working in health care facilities and in community-based services including home health and behavioral health; 2) law enforcement personnel, fire and emergency services personnel, and staff at correctional facilities; 3) individuals employed at emergency child care centers operating on or after April 1, 2020; 4) staff working for entities that provide essential social services, including, but not limited to, group home and shelter staff; 5) essential government employees who are unable to work from home, including child protection services workers, child welfare workers, foster care workers, unemployment compensation processing staff, and public health employees; and 6) certain critical workers, as defined by the Commissioner of DCF, at essential retail businesses, as defined in Executive Order No. 107 (2020) and subsequent Administrative Orders. The Commissioner of DCF shall have the authority to make changes to this list.

How will this impact upon workers in need of child care not deemed “essential persons,” but who nonetheless are required to report to work? Gov. Murphy’s Executive Order 107 signed on March 21, 2020 permits certain businesses to remain open and use their best efforts to reduce on site staff as much as they can, as long as they can remain operational, and permit staff to work from home “wherever practicable.” Thus, some staff members may need to be on-site and it may not be practicable for all employees to work from home. Executive Order 107 states: “Examples of employees who need to be physically present at their work site in order to perform their duties include, but are not limited to, law enforcement officers, fire fighters, and other first responders, cashiers or store clerks, construction workers, utility workers, repair workers, warehouse workers, lab researchers, information technology maintenance workers, janitorial and custodial staff, and certain administrative staff.”

Other than “essential persons” listed in Executive Order 110, such on-site workers who are in need of child care will now be out of luck, unless they happen to have in-home child care. However, if an employee who cannot come to work because their children(s)’ day care closed due to COVID-19, works for a public employer or private employer with less than 500, but more than 50 employees, the employee may have some relief under the Families First Coronavirus Response Act (FFCRA). That recently enacted measure, which is effective on April 2, 2020, contains a number of provisions, including two types of paid leave: Two Week Paid Emergency Leave and FMLA Emergency Leave. (See our blog of March 24, 2020, President Signs Coronavirus Relief Package into Law).

There is also recently enacted COVID-19 related relief for New Jersey workers who cannot report to work because their child care closed due to COVID-19, in the form of being able use earned sick leave under the New Jersey Sick Leave Law for the absence. However, the amount of such leave is a maximum of 40 hours per year. It certainly appears that the COVID-19 Pandemic will go beyond 40 hours.

There are certainly a jungle of rules, orders and laws that are being enacted seemingly daily to deal with the COVID-19 Pandemic which are increasingly difficult to navigate as they appear to take care of one issue, only to cause another to emerge.

This blog is for informational purposes only. It does not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This blog may constitute attorney advertising. This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.