Executive Order No. 238 (2021) -

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:

1. Paragraph 1 of Executive Order No. 234 (2021) is hereby rescinded and the number of individuals at outdoor gatherings shall be limited to 500 persons or fewer. An outdoor gathering that is a religious service or celebration, political activity, wedding ceremony, funeral, memorial service, meeting of an addiction support group, legislative proceeding of State, county, or local government, including local Boards of Education, or State or local judicial proceeding is not required to comply with the numerical limit on persons. All other requirements for outdoor gatherings contained in Paragraph 1 of Executive Order No. 161 (2020), including the requirements of Paragraph 2 of Executive Order No. 152 (2020) incorporated by reference therein, shall remain in effect.

2. Outdoor entertainment centers where performances are viewed or given, including movie theaters, performing arts centers, and other concert venues, must continue to limit the number of patrons in any outdoor area where a performance is viewed or given to a number that ensures that all individuals can remain six feet apart, but such limit shall never be larger than 500 persons, unless the outdoor entertainment venue has a fixed seating capacity of 1,000 persons or greater as described in Paragraph 5 of this Order. Paragraph 2 of Executive Order No. 234 (2021) is hereby superseded to the extent that it conflicts with the provisions of this Order.

3. Recreational or entertainment businesses, and restaurants, cafeterias, dining establishments, food courts, bars, and public and private social clubs where events take place that utilize a licensed caterer or where such venue holds a license to prepare and serve food to the public, must limit the number of patrons participating in any outdoor celebration or similar private catered event to a number that ensures that individuals can remain six feet apart, but such limit shall never be larger than 500 persons, excluding the venue's staff. Paragraph 6 of Executive Order No. 234 (2021) is hereby superseded to the extent that it conflicts with the provisions of this Order.

4. All athletic practices and competitions, including professional, collegiate, and non-collegiate and non-professional, that are conducted outdoors are subject to the outdoor gathering limit of 500 persons. Athletes, coaches, referees, trainers, and other individuals who are necessary for the practice or competition are not included in the number of individuals present at a gathering for purposes of the limits on gatherings. All other individuals, including spectators, must be limited to 500 persons. The provisions of Paragraph 1 of Administrative Order No. 2020-22 regarding outdoor gatherings shall continue to apply. Paragraph 3 of Executive Order No. 234 (2021) is hereby superseded to the extent that it conflicts with the provisions of this Order.

5. Sports and entertainment venues, including concert venues and stadiums, with fixed seating capacity of 1,000 or greater, that have opened their outdoor spaces to the public may permit a number of patrons and/or members of the public totaling up to 50 percent of the stated maximum capacity of any outdoor area where such event is held. Such venues shall continue to follow all applicable requirements in any other Executive Order, Administrative Order, and/or Executive Directive, including, but not limited to, the requirements regarding mask wearing in Executive Order No. 192 (2020). All attendees at the event are required to be six feet apart from other attendees at all times, except that individuals who purchase or reserve tickets together may be seated together, but must be six feet away from all other groups or individuals in all directions. This paragraph shall apply to events, including sports competitions and performances, that take place in sports and entertainment venues with a fixed seating capacity of 1,000 persons or greater. Paragraph 9 of Executive Order No. 234 (2021) is superseded to the extent that it conflicts with the provisions of this Order.

6. The number of individuals at indoor gatherings that are political activities, wedding ceremonies, wedding receptions, funerals, or memorial services shall be limited to 50 percent of the capacity of the room in which it takes place, but regardless of the capacity of the room, such limit shall never be larger than 250 persons or smaller than 25 persons, excluding staff of the gathering venue. For purposes of this Order, any private residence or residential unit shall be treated as a single "room." Legislative proceedings of State, county, or local government, including local Boards of Education, and State and local judicial proceedings in indoor settings are not subject to the capacity limits on indoor gatherings in this or any other applicable Executive Order. Paragraph 2 of Executive Order No. 230 (2021) is hereby superseded to the extent that it conflicts with the provisions of this Order.

7. Recreational or entertainment businesses, and restaurants, cafeterias, dining establishments, food courts, bars, and public and private social clubs where events take place that utilize a licensed caterer or where such venue holds a license to prepare and serve food to the public, must limit the number of patrons participating in any indoor celebrations or similar private catered events to 50 percent of the capacity of the room in which it takes place, but regardless of the capacity of the room, such limit shall never be smaller than 25 persons or larger than 250 persons, excluding the venue's staff. Paragraph 5 of Executive Order No. 234 (2021) is hereby superseded to the extent that it conflicts with the provisions of this Order.

8. All indoor gatherings, including wedding receptions and catered events in indoor and outdoor settings, must continue to follow all applicable requirements for indoor gatherings outlined in Paragraphs 5 and 6 of Executive Order No. 183 (2020), including those provisions that incorporate by reference the requirements of Paragraph 1 of Executive Order No. 152 (2020).

9. Dance floors shall be permitted to open for indoor and outdoor celebrations or similar private catered events, as described in Paragraphs 3 and 6 of this Order. All individuals using the dance floor must wear a face mask at all times except where the individual is under two years of age. All attendees on the dance floor are required to be six feet apart from the other attendees at all times, excluding immediate family members, caretakers, household members, or romantic partners, as well as excluding individuals organizing or maintaining the gathering. Paragraph 9 of Executive Order No. 157 (2020) is hereby superseded to the extent that it conflicts with the provisions of this Order.

10. Food and beverage establishments are permitted to seat patrons at indoor bar areas, consistent with the requirements of Paragraph 1 of Executive Order No. 183 (2020), and guidance provided by DOH. Paragraph 2 of Executive Order No. 194 (2020) is hereby rescinded. In-person service to patrons standing in bar areas continues to be prohibited.

11. Food and beverage establishments, as defined by Executive Order No. 183 (2020) are permitted to offer self-service food, such as buffets and salad bars, subject to the protocols outlined in the New Jersey DOH's "Health and Safety Standards for Indoor Dining." Paragraph 1 of Executive Order No. 183 (2020) is hereby superseded to the extent that it conflicts with the provisions of this Order.

12. The State Director of Emergency Management, who is the Superintendent of State Police, shall have the discretion to make additions, amendments, clarifications, exceptions, and exclusions to the terms of this Order.

13. It shall be the duty of every person or entity in this State or doing business in this State and of the members of the governing body and every official, employee, or agent of every political subdivision in this State and of each member of all other governmental bodies, agencies, and authorities in this State of any nature whatsoever, to cooperate fully in all matters concerning this Order.

14. No municipality, county, or any other agency or political subdivision of this State shall enact or enforce any order, rule, regulation, ordinance, or resolution which will or might in any way conflict with any of the provisions of this Order, or which will or might in any way interfere with or impede its achievement, except as otherwise provided in Executive Order No. 195 (2020).

15. Penalties for violations of this Order may be imposed under, among other statutes, N.J.S.A. App. A:9-49 and -50.

16. This Order shall take effect at 6:00 a.m. on Friday, May 7, 2021, and shall remain in effect until revoked or modified by the Governor, who shall consult with the Commissioner of DOH as appropriate.

(Published January 4, 2018 in the New Jersey Register at 50 N.J.R. 695(a). Published May 7, 2021 in the New Jersey Register at 53 N.J.R. 968(a).)

The following state regulations pages link to this page.