N.J. Admin. Code § Executive Order No. 238 (2021)
Governor Philip D. Murphy
Executive Order No. 238 (2021)
An Order Announcing an Additional Easing of Restrictions, Including a Removal of All Percentage Capacity Limits for Indoor and Outdoor Businesses, a Lifting of the Prohibition on Indoor Bar Seating, and an End to the Outdoor Gathering Limit
Issued: May 3, 2021.
Effective: May 7, 2021.
WHEREAS, in light of the dangers posed by Coronavirus disease 2019 ("COVID-19"), I issued Executive Order No. 103 on March 9, 2020, the facts and circumstances of which are adopted by reference herein, which declared both a Public Health Emergency and State of Emergency; and
WHEREAS, through Executive Order Nos. 119, 138, 151, 162, 171, 180, 186, 191, 200, 210, 215, and 231, issued on April 7, 2020, May 6, 2020, June 4, 2020, July 2, 2020, August 1, 2020, August 27, 2020, September 25, 2020, October 24, 2020, November 22, 2020, December 21, 2020, January 19, 2021, February 17, 2021, March 17, 2021, and April 15, 2021, respectively, the facts and circumstances of which are adopted by reference herein, I declared that the COVID-19 Public Health Emergency continued to exist and declared that all Executive Orders and Administrative Orders adopted in whole or in part in response to the COVID-19 Public Health Emergency remained in full force and effect; and
WHEREAS, in accordance with N.J.S.A. App. A:9-34 and -51, I reserve the right to utilize and employ all available resources of State government to protect against the emergency created by COVID-19; and
WHEREAS, as COVID-19 has continued to spread across New Jersey, I have issued a series of Executive Orders pursuant to my authority under the New Jersey Civilian Defense and Disaster Control Act and the Emergency Health Powers Act, to protect the public health, safety, and welfare against the emergency created by COVID-19, including Executive Order Nos. 104-133, Nos. 135138, Nos. 140-166, Nos. 168-173, No. 175, Nos. 177-181, No. 183, Nos. 186-187, Nos. 189-198, No. 200, Nos. 203-204, No. 207, and 210-211 (2020) and Nos. 214-216, Nos. 219-220, Nos. 222223, No. 225, Nos. 228-235 and No. 237 (2021), the facts and circumstances of which are all adopted by reference herein; and
WHEREAS, to limit community spread from person-to-person contact through use of social mitigation measures, Executive Order No. 107 (2020) closed all recreational and entertainment businesses, and limited certain activities, including gatherings; and
WHEREAS, after consultation with officials from the Department of Health ("DOH"), I announced a multi-stage New Jersey's Road Back Plan for the methodical and strategic reopening of businesses and activities based on scientific data and metrics concerning the level of disease transmission risk and essential classification; and
WHEREAS, because of the progress we had made in our fight against the COVID-19 pandemic in New Jersey, I was able to announce a series of reopening steps over the course of several months, including increasing the indoor and outdoor gathering limit; and
WHEREAS, though the State experienced significant upticks in case numbers throughout the fall and early winter, necessitating tightening of certain business and gathering restrictions, key metrics have again improved over the past months; and
WHEREAS, the current outdoor gatherings limit is set at 200 individuals, with certain limited exceptions; and
WHEREAS, Executive Order No. 234 (2021) stated that all athletic practices and competitions conducted outdoors are subject to the 200-person limit, but that athletes, coaches, trainers, and other individuals necessary for the practice or competition are not included in the number of individuals present; and
WHEREAS, that Order also permitted certain catered private events to proceed at 35 percent of the capacity of the room in which they take place, up to 150 persons; and
WHEREAS, Executive Order No. 234 (2021) increased the capacity for larger venues to 30 percent outdoors, and lowered the threshold for a venue to be considered large to 2,500 fixed seats from 5,000; and
WHEREAS, Executive Order No. 157 (2020) required any establishment open to the public to cordon off indoor and outdoor dance floors to the public; and
WHEREAS, Executive Order No. 194 (2020) prohibited bar seating in the indoor premises of food and beverage establishments; and
WHEREAS, in the past year, we have gained critical knowledge regarding COVID-19, including a better understanding of the risks associated with certain activities, the activities that are most conducive to spread of the virus, and the safeguards that can be implemented to mitigate those risks; and
WHEREAS, this information, together with expanded access to testing, personal protective equipment, and other materials necessary to protect individuals from spread of the virus, as well as the ongoing COVID-19 Vaccination Plan ("Plan") discussed below, allows for certain activities to continue subject to more limited restrictions; and
WHEREAS, the number of hospitalized patients, patients in intensive care, and ventilators in use, and the rate of transmission have decreased significantly over the past few weeks; and
WHEREAS, given the recent decreases in key statistics, such as the number of hospitalized patients in the State, and the continuation of the State's vaccination plan, described more fully below, the State can take deliberate, incremental steps to lift certain restrictions that were designed to limit person-to-person contact; and
WHEREAS, the Centers for Disease Control and Prevention ("CDC") continues to emphasize that outdoor environments pose less risk than indoor environments, so that we can significantly increase the outdoor gathering limit to encourage outdoor activities as the weather warms; and
WHEREAS, certain gatherings, including religious services and political activity, are constitutionally protected activities, and restrictions on these gatherings should be less aggressive than restrictions on other gatherings; and
WHEREAS, legislative and judicial proceedings are particularly important to the functioning of the State, the latter of which implicates constitutional rights and foundational privileges, and so should also proceed with less restrictive limits; and
WHEREAS, addiction group counseling services are a critical social and mental health service that necessitate robust group participation, particularly during the pandemic, which has heightened feelings of stress and social isolation, and thus can exceed the general gathering limit while following health and safety protocols; and
WHEREAS, certain events such as wedding ceremonies, funerals, and memorial services, which typically happen once in a lifetime, provide [page=969] benefits to the well-being of the participants such that they can be treated differently from casual social gatherings such as house parties, which occur on a more frequent basis and typically do not present the same compelling need; and
WHEREAS, catered celebrations are structured events with an established list of attendees that would facilitate contact tracing efforts, and involve an overseeing entity capable of overseeing attendee and staff compliance with applicable health and safety protocols, so that all such events can operate at the same capacity as weddings, funerals, and similar events with a higher indoor capacity limitation; and
WHEREAS, because of the structured nature of these events, we can similarly permit dance floors, while leaving restrictions in place for food and beverage establishments generally; and
WHEREAS, sports and entertainment venues with a large maximum capacity can accommodate a greater number of individuals at a gathering while still ensuring that a minimum of six feet of distance is maintained between patrons or groups of patrons at all times, including at entrances and egresses to the facility; and
WHEREAS, indoor bar service can resume with certain health and safety protocols in place to lessen the risk of spread between patrons and bartenders at restaurants and bars; and
WHEREAS, the CDC has stated that contact with contaminated surfaces and handling and consuming food are not the primary methods by which COVID-19 is spread, so that self-service food and drink can be permitted at food and beverage establishments, as we previously allowed in retail businesses, with certain restrictions in place; and
WHEREAS, as part of the State's response to COVID-19, DOH has created a comprehensive Plan to manage the receipt, administration, and tracking of the vaccines developed to inoculate the State's residents and workforce against COVID-19; and
WHEREAS, the State has thus far administered over 7 million doses of COVID-19 vaccines to individuals that live, work, and are educated in New Jersey and as of April 19, 2021, has deemed all individuals ages 16 and older as eligible to receive the vaccine; and
WHEREAS, the process of vaccinating the population to levels sufficient to establish community immunity is expected to take several months; and
WHEREAS, while New Jersey is rapidly expanding its capacity to vaccinate large numbers of individuals each day, it is still appropriate to maintain mitigation protocols, including overall limits on capacity in establishments open to the public, to ensure spread is limited while dissemination of the vaccine continues; and
WHEREAS, it is critical that individuals continue to follow social distancing, masking, and other infection control protocols while vaccine administration is ongoing in the State; and
WHEREAS, the Constitution and statutes of the State of New Jersey, particularly the provisions of N.J.S.A. 26:13-1et seq., N.J.S.A. App. A: 9-33 et seq., N.J.S.A. 38A:3-6.1, and N.J.S.A. 38A:24 and all amendments and supplements thereto, confer upon the Governor of the State of New Jersey certain emergency powers, which I have invoked;
NOW, THEREFORE, I, PHILIP D. MURPHY, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the Statutes of this State, do hereby ORDER and DIRECT:
N.J. Admin. Code Executive Order No. 238 (2021)