Item 2 of the most recent executive order 107 entered by Governor Murphy effective Saturday, March 21, 2020, at 9:00 p.m. requires New Jersey residents to remain at their place of residence unless they are generally, “social services, visiting with a person with whom one has close personal relations, reporting to or performing their job and a few other enumerated activities.”
When in public, individuals must practice social distancing and stay six feet apart whenever practicable pursuant to item 3 of that order. Further, item 5 provides that gatherings of individuals or other social events are canceled. CDC guidance defines a gathering to include conferences, large meetings, parties, festivals, parades, concerts, sporting events, weddings, and other types of assemblies. However, the State Director of Emergency Management, who is the Superintendent of the State Police is given the discretion to make clarifications and issue orders related to this provision.
Item 9 specifically requires “all recreational and entertainment businesses” to close. That paragraph offers a list of recreational and entertainment businesses but the order is not limited to the list. Included in the list are gyms and fitness centers and classes, entertainment centers, and all places of public amusement, whether indoors or outdoors. However, community associations are not recreational and entertainment businesses; thus, this paragraph may not control the association’s ability to maintain its gym and pool facilities. In light of this life-threatening pandemic, we recommend that it is prudent to close these facilities, for as long as the social distancing mandate is in effect, in order to support the mandate issued that all individual residents of the community practice social distancing. Further, item 9g prohibits the public or private gathering of social clubs. Thus, associations should cancel and prohibit all gatherings of clubs from the clubhouse for the duration.
Item 11 requires a business to make best efforts to reduce staff on-site to the minimal number of people necessary to ensure that essential operations can continue. Within the examples given in the order of employees who need to be physically present at their worksite in order to perform their duties include, but are not limited to construction workers, utility worker, repair workers, warehouse workers, information technology maintenance workers, janitorial and custodial staff and certain administrative staff. One might well imagine there are other employees who arguably need to be physically present not listed such as, concierge staff, moving or delivery workers, snow clearing or landscape workers, depending on the weather.
There is no language that specifically says that pool companies cannot provide pool opening or management services in the Governor’s order; however, to the extent that services provided are not repair or construction work and in light of the mandate for social distancing, it is unlikely that the pool management services would be considered essential. As such, it is likely that existing pool management contracts might be considered suspended and depending on the circumstances, could possibly be voided if performance is ultimately rendered impossible. Manufacturing, industrial, logistics, ports, heavy construction, shipping, food production, food delivery, and other commercial operations may continue operating, but as explained above, they should practice social distancing when in public and limit staff on site to the minimal number to ensure that essential operations can continue.