New Jersey Has Closed “Non-Essential” Retail Businesses To Mitigate Covid-19; Is Your Retail Business “Essential”?

The spread of coronavirus has caused the mass closure of retail businesses throughout New Jersey. Some retailers, however, have been allowed to operate during this difficult time. If a business provides services or products deemed “essential” to public life, it may be able to open its doors again.

On March 20, 2020, in an effort to mitigate the impact of COVID-19 on our public health, New Jersey Governor Phil Murphy issued Executive Order 107 [] directing all residents to stay home, observe “social distance,” and closing all non-“essential” retail, recreational, and entertainment businesses to the public until further notice.

The Order expressly exempted certain retail businesses, deeming them “essential” because they provide needed services:

• Grocery stores, farmer’s markets and farms that sell directly to customers, and other food stores, including retailers that offer a varied assortment of foods comparable to what exists at a grocery store;
• Pharmacies and medical marijuana dispensaries;
• Medical supply stores;
• Gas stations;
• Convenience stores;
• Ancillary stores within healthcare facilities;
• Hardware and home improvement stores;
• Banks and other financial institutions;
• Laundromats and dry-cleaning services;
• Stores that principally sell supplies for children under five years;
• Pet stores;
• Liquor stores;
• Car dealerships, but only for auto maintenance and repair, to deliver online purchases directly to customers, or to arrange for curbside pickup;
• Printing and office supply shops;
• Mail and delivery stores; and
• Bars and restaurants for drive-through, delivery, and curbside takeout only.

Under the Order, these exempt businesses’ brick and mortar premises may continue to operate, but they must make “best efforts” to reduce staff to the minimal number of workers needed for operations. In addition, they must ensure compliance with certain social distancing (e.g. maintaining a six-foot space between people on the premises) and sanitization requirements.

Retailers not included in Order 107 may seek a designation that they, too, are “essential,” and resume operating though under the above limitations. Businesses may seek this “essential” status by applying to the State Director of Emergency Management. Since the Governor’s issuance of Order 107, several businesses have applied for and obtained the designation by the Director. Some examples include:

• Mobile phone retail and repair shops (added March 24);
• Bicycle shops, but only to provide service and repair (added March 24);
• Livestock feed stores (added March 24);
• Nurseries and garden centers (added March 24);
• Farming equipment stores (added March 24); and
• Firearms retailers, but by appointment only and during limited hours (added March 30).

By and large, it appears that businesses obtaining the exemption must provide services or products that are seen as necessary to maintain a normal, safe, and secure life while we collectively shelter, social distance, and work to “flatten the curve.” The decision of whether a business qualifies, and whether any additional constraints may attach to its operation, is a matter of the Director’s discretion, and will be determined on a case-by-case basis.

If you believe your retail business is “essential” and can and should be allowed to operate under the conditions required, or if you need assistance understanding and implementing those requirements, Ansa Assuncao is here to help. Contact James S. Coons at [email protected] or (732) 993-9850 with any questions.

James Coons is a Partner in our New Jersey office.