N.J. Admin. Code § Executive Order No. 302 (2022)
Governor Philip D. Murphy
Executive Order No. 302 (2022)
An Order Lifting Routine COVID-19 Testing Requirements for School Districts, Child Care Settings, and State Contractors
Issued: August 15, 2022.
Effective: August 15, 2022.
WHEREAS, on March 9, 2020, I issued Executive Order No. 103, declaring the existence of a Public Health Emergency, pursuant to the Emergency Health Powers Act ("EHPA"), N.J.S.A. 26:131 et seq., and a State of Emergency, pursuant to the New Jersey Civilian Defense and Disaster Control Act ("Disaster Control Act"), N.J.S.A. App A:9-33 et seq., in the State of New Jersey for Coronavirus disease 2019 ("COVID-19"), the facts and circumstances of which are adopted by reference herein; and
WHEREAS, through Executive Order Nos. 119, 138, 151, 162, 171, 180, 186, 191, 200, 210, 215, 222, 231, 235, and 240, which were issued each month between April 7, 2020 and May 14, 2021, the facts and circumstances of which are adopted by reference herein, I declared that the COVID-19 Public Health Emergency in effect at the time continued to exist; and
WHEREAS, New Jersey made significant progress in responding to COVID-19 and mitigating its devastating effects, in particular in light of the advent of several effective vaccines that, among other things, had significantly reduced the likelihood of both contracting and transmitting the variants of COVID-19 that were present in the United States at the time; and
WHEREAS, on June 4, 2021, in light of these developments, I signed Assembly Bill No. 5820 into law as P.L. 2021, c. 103, and issued Executive Order No. 244, which terminated the Public Health Emergency declared in Executive Order No. 103 (2020); and
WHEREAS, P.L. 2021, c. 103 sought to enable the State to bring an end to its initial Public Health Emergency while still allowing for an orderly continuation of the Administration's ability to order certain public health measures relating to COVID-19, including but not limited to vaccine distribution, administration, and management, COVID-19 testing, health resource and personnel allocation, data collection, and implementation of recommendations of the Centers for Disease Control and Prevention ("CDC") to prevent or limit the transmission of COVID-19, including in specific settings; and
WHEREAS, P.L. 2021, c. 103 explicitly maintained the State of Emergency declared in Executive Order No. 103 (2020), and stated it would in no way diminish, limit, or impair the powers of the Governor to respond to any of the threats presented by COVID-19 pursuant to the Disaster Control Act; and
WHEREAS, in addition to leaving the prior State of Emergency in effect, nothing in P.L. 2021, c. 103 prevented the Governor from declaring any new public health emergency under the EHPA, N.J.S.A. 26:13-1 et seq., should the evolving circumstances on the ground require such a declaration; and
WHEREAS, Executive Order No. 252, issued August 6, 2021, required all covered health care and high-risk congregate settings ("covered settings") to maintain a policy that required all covered workers to either provide adequate proof to the covered settings that they have been fully vaccinated or submit to COVID-19 testing at minimum one to two times weekly beginning September 7, 2021; and
WHEREAS, Executive Order No. 253, issued August 23, 2021, requires all public, private, and parochial preschool programs and elementary and secondary schools, including charter and renaissance schools (collectively "school districts") to maintain a policy that requires all covered workers to either provide adequate proof to the school district that they have been fully vaccinated or submit to COVID-19 testing at minimum one to two times weekly beginning October 18, 2021; and
WHEREAS, Executive Order No. 264, issued September 20, 2021, requires all child care centers and other child care facilities (collectively "child care settings") to maintain a policy that requires all covered workers to either provide adequate proof to the child care settings that they have been fully vaccinated or submit to COVID-19 testing at minimum one to two times weekly beginning November 1, 2021; and
WHEREAS, Executive Order No. 271, issued October 20, 2021, requires that each executive department and agency, including an independent authority, ensure that certain new contracts, new solicitations for contracts, extensions or renewals of existing contracts, and exercising options on existing contracts, include a clause that the contractor or any subcontractors, at any tier, that is party to the contract ("covered contractor(s)"), must maintain a policy that requires all covered workers to either provide adequate proof to the covered contractor that they have been fully vaccinated or submit to COVID-19 testing at minimum one to two times weekly; and
WHEREAS, as the CDC has recognized, viruses can change through mutation and mutations can result in variants of the virus, and some variants can spread more easily and quickly than other variants of the same virus, which may lead to more cases of COVID-19, increased strain on healthcare resources, more hospitalizations, and more deaths; and
WHEREAS, since Executive Order No. 244 (2021) took effect, the CDC has reported that new variants of concern of COVID-19 have been identified in the United States, particularly the
B.1.617.2 (Delta) variant and most recently the B1.1.529, BA.1, BA.1.1, BA.2, BA.3, BA.4, and BA.5 lineages of the Omicron variant ("Omicron"); and
WHEREAS, although New Jersey was able to end the initial Public Health Emergency on account of the effectiveness of vaccines in reducing transmissibility of COVID-19, the Omicron spread more easily than other variants and required additional action to protect the public; and
WHEREAS, on January 11, 2022, I issued Executive Order No. 280, declaring the existence of a new Public Health Emergency, pursuant to the EHPA, N.J.S.A. 26:13-1 et seq., and continuing the State of Emergency declared in Executive Order No. 103 (2020) pursuant to the Disaster Control Act, N.J.S.A. App. A:9-33 et seq., in the State of New Jersey due to the surge of cases and hospitalizations tied to the new variants of COVID-19; and
WHEREAS, on January 11, 2022, I issued Executive Order No. 281, extending various orders to ensure the State continues to have the necessary resources in place to respond to the new variants of COVID-19; and
WHEREAS, on January 19, 2022, I issued Executive Order No. 283, requiring certain health care and high-risk congregate settings to maintain a policy that requires all covered workers to provide adequate proof to the covered settings that they are up to date with their COVID-19 vaccinations, including a booster dose when eligible; and
WHEREAS, on February 10, 2022, I issued Executive Order No. 288, which declared that the Public Health Emergency declared in Executive Order No. 280 (2022) continued to exist; and
WHEREAS, on March 2, 2022, I issued Executive Order No. 290, clarifying and extending the timeframes within which covered settings must require their covered workers to comply with the vaccination and booster requirements set forth in Executive Order No. 283 (2022); and
WHEREAS, as a result of significant emergency measures taken, the State made considerable progress in combating COVID-19 variants and decreasing key statistics, such as the number of hospitalized patients in the State, the number of daily positive COVID-19 cases, spot positivity, and the rate of transmission; and
WHEREAS, in light of these developments, on March 4, 2022, I issued Executive Order No. 292 terminating the Public Health Emergency declared in Executive Order No. 280 (2022) effective March 7, 2022, while continuing the State of Emergency declared in Executive Order No. 103; and
[page=1760] WHEREAS, Executive Order No. 292 (2022) stated that Executive Order Nos. 111, 112, and 207 (2020), Nos. 252, 253, 264, and 271 (2021) and Nos. 283 and 290 (2022) remain in full force and effect pursuant to the Disaster Control Act, N.J.S.A. App. A:9-33 et seq., except that paragraphs 11 and 13 of Executive Order No. 264 (2021) were rescinded; and
WHEREAS, Executive Order No. 292 (2022) lifted certain mitigation protocols, including the requirement that face masks be worn in school districts and child care settings, while continuing to require workers in school districts and child care settings to receive a COVID-19 vaccine or undergo regular testing in order to help prevent outbreaks and reduce transmission to children; and
WHEREAS, on April 13, 2022, I issued Executive Order No. 294, clarifying the vaccination and booster requirements applicable to workers in certain covered settings as set forth in Executive Order No. 283 (2022) and Executive Order No. 290 (2022); and
WHEREAS, the Department of Health's ("DOH") Executive Directive No. 21-011 (Revised), dated April 6, 2022, provides protocols for COVID-19 testing and vaccination reporting for covered settings pursuant to Executive Order Nos. 252, 253, and 264 (2021) and Nos. 283 and 290 (2022), including the requirement that school districts report information to DOH using the Surveillance for Influenza and COVID-19 ("SIC") Module in the Communicable Disease Reporting and Surveillance System; and
WHEREAS, throughout the course of the COVID-19 pandemic, the U.S. Food and Drug Administration ("FDA") has continually evaluated data on the safety and effectiveness of the COVID-19 vaccine, including as administered to children of various age groups; and
WHEREAS, on October 29, 2021 and May 17, 2022, the FDA issued amendments to its Emergency Use Authorizations ("EUAs") of the COVID-19 vaccines which, collectively, expanded eligibility of certain COVID-19 vaccines and booster doses to children and adolescents between 5 and 17 years of age; and
WHEREAS, on June 17, 2022, the FDA issued further amendments to its EUAs of the COVID-19 vaccines which expanded eligibility of the primary COVID-19 vaccination series of certain COVID-19 vaccines to children between 6 months to 5 years of age; and
WHEREAS, New Jersey has administered over 18.4 million doses of the COVID-19 vaccine in the State to date, with over 8 million or 93% of New Jerseyans having received at least one dose of the vaccine; and
WHEREAS, of the total doses of the COVID-19 vaccine administered in New Jersey, over 1.9 million doses have been administered to children between 6 months to 17 years of age; and
WHEREAS, according to the CDC, various treatments and FDA-authorized therapeutics for COVID-19, such as antiviral medications and monoclonal antibodies, that can reduce the likelihood of severe illness and death have become widely available; and
WHEREAS, over the last five months, the State has experienced stable rates on key benchmark statistics, such as the number of hospitalized patients, patients in intensive care, and ventilators in use, and the spot positivity of COVID-19 tests; and
WHEREAS, on August 11, 2022, the CDC issued updated "Guidance for Minimizing the Impact of COVID-19 on Individual Persons, Communities, and Health Care Systems" in which the CDC recognizes that high levels of vaccine and infection-induced immunity and the availability of effective treatments and prevention tools have substantially reduced the risk for medically significant COVID-19 illness, and associated hospitalization and death; and
WHEREAS, the CDC's updated guidance notes that as a result of improved circumstances and the availability of multicomponent prevention measures, public health efforts to minimize the impacts of COVID-19 can now be tailored to individual and societal health factors, with a focus on reducing medically significant illness and minimizing the strain on the health care system, while removing barriers to social, educational, and economic activity; and
WHEREAS, the CDC's updated guidance recognizes that continuing to increase COVID-19 vaccination coverage, including booster doses, expanding access to therapeutics, and undertaking testing and other prevention measures remain essential to prevent severe outcomes and death from COVID-19, particularly for persons who are at an increased personal risk for severe adverse reactions and persons in certain health care and high-risk congregate settings; and
WHEREAS, the CDC's updated guidance further recognizes that in general community settings, including school districts and child care settings, local public health officials and jurisdictions are equipped with a host of COVID-19 prevention strategies and localized data to decide which mitigation protocols to use and when, based on COVID-19 Community Levels and setting-specific factors; and
WHEREAS, on August 11, 2022, the CDC also issued updated "Operational Guidance for K-12 Schools and Early Care and Education Programs to Support Safe In-Person Learning" in which the CDC recommends that school districts and child care settings utilize COVID-19 mitigation protocols on a flexible basis; and
WHEREAS, as reported in the updated guidance for school districts and child care settings, the CDC is no longer recommending routine screening testing in school districts and child care settings, except as may be deemed necessary for certain high-risk, close contact activities, or when the CDC Community Levels in the local region of the school district or child care setting reach high levels; and
WHEREAS, in light of the CDC's updated guidance, and given the progress the State has made, the State can begin to responsibly lift certain mitigation protocols in place, including the requirement that school districts and child care settings maintain a policy requiring their unvaccinated covered workers to submit to weekly or twice weekly COVID-19 testing, as well as the requirement that covered contractors maintain a policy requiring their unvaccinated covered workers submit to weekly or twice weekly COVID-19 testing, as the State continues the next phase of the COVID-19 response; and
WHEREAS, continued surveillance of school-associated COVID-19 cases, clusters, and outbreaks is necessary for DOH to understand and track COVID-19 in the school setting, including monitoring the impact of vaccination, in order to inform public health decisions and actions, therefore it is critical that school districts continue to be required to report into the SIC module; and
WHEREAS, despite the extensive progress made in combatting COVID-19, and the ability to lift certain mitigation protocols, there remains an ongoing threat necessitating that certain actions taken by the State in response to COVID-19 and new variants, can remain in place as the State continues the next phase of our COVID-19 response; and
WHEREAS, the CDC continues to emphasize the importance of heightened mitigation protocols in certain covered settings, especially high-risk congregate care settings, because of the significant risk of spread and vulnerability of the populations served; and
WHEREAS, continuing to require workers in those covered settings to be up to date with their COVID-19 vaccinations, including the first booster dose for which they are eligible, can help prevent outbreaks and reduce transmission to vulnerable individuals who may be at higher risk of severe disease; and
WHEREAS, the Constitution and statutes of the State of New Jersey, 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. 302 (2022)