Can An Employer In New Jersey Require An Executive Or A Professional To Be Vaccinated Against COVID-19?
Under New Jersey law, executives and professionals are considered employees. They are required to comply with their employers’ vaccination mandates to the same extent that other employees in New Jersey must comply with such mandates.
Federal laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19. However, in some circumstances, federal laws require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.
In addition, under a federal administrative agency’s emergency testing standard (“ETS”), businesses with 100 or more employees must, by December 5, 2021, develop, implement, and enforce a mandatory COVID-19 vaccination policy for all employees physically entering the workplace, with an exception for employers that, by January 4, 2022, instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. Federal law excepts from covered employers’ mandatory COVID-19 vaccination policies, among other employees, employees who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement. However, a federal court of appeals has stayed nationwide, during the pendency of judicial review, this federal ETS.
An employer in New Jersey may require all employees physically entering the workplace to be fully vaccinated against COVID-19, as long as the employers reasonably accommodate those employees who do not get vaccinated against COVID-19 because of a sincerely held religious belief, practice, or observance, a disability, or a pregnancy.
Further, in New Jersey, all workers in preschool to Grade 12 schools, all workers in certain health care facilities and high-risk congregate settings, all workers at state agencies, authorities, and colleges and universities, and all child care workers must be fully vaccinated against COVID-19 or be subject to COVID-19 testing at minimum one to two times per week.
The ability or duty of employers in New Jersey to require all employees physically entering the workplace to be fully vaccinated against COVID-19 is governed by two different bodies of law: federal laws (that is, laws applying throughout the United States) and New Jersey laws. Let’s examine, in turn, each of these sources of authority.
Federal Law
The federal equal employment opportunity laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) and the Americans with Disabilities Act (“the ADA”) and other equal employment opportunity considerations discussed in this article.
In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The analysis for undue hardship differs depending on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) or for religion.
Further, it is unlawful to apply a vaccination requirement to employees in a manner that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.
An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For instance, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework (that is, to work remotely), or lastly, accept a reassignment.
Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.
In addition, on November 4, 2021, the U.S. Occupational Safety and Health Agency (“OSHA”) issued an Emergency Temporary Standard (an “ETS”) requiring businesses with 100 or more employees, by December 5, 2021, to develop, implement, and enforce a mandatory COVID-19 vaccination policy for all employees physically entering the workplace, with an exception for employers that, by January 4, 2022, instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. According to the White House, this rule will impact more than 80 million workers.
The ETS requires covered employers to give workers up to four hours of paid time off to get vaccinated, and to provide workers with reasonable time and paid sick leave to recover from any side effects of getting vaccinated.
The ETS excepts, from covered employers’ mandatory COVID-19 vaccination policies, employees (i) for whom a vaccine is medically contraindicated, (ii) for whom medical necessity requires a delay in vaccination, or (ii) who are legally entitled to a reasonable accommodation under Title VII or the ADA because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.
On November 6, 2021, a panel of the U.S. Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) issued a temporary stay of OSHA’s Emergency Temporary Standard. (The Fifth Circuit is the intermediate federal court of appeals with jurisdiction over Louisiana, Mississippi, and Texas.) In granting the temporary stay, the Fifth Circuit panel stated that there is “cause to believe there are grave statutory and constitutional issues with [the ETS].”
On November 12, 2021, the same panel of the Fifth Circuit issued an Order reaffirming, during the pendency of judicial review, its initial stay of OSHA’s Emergency Testing Standard. In reaffirming its initial stay of OSHA’s ETS, the Fifth Circuit panel stated the petitioners, many of which are covered employers in Louisiana, Mississippi, or Texas, “show a great likelihood of success on the merits” of their challenge to the ETS. The Fifth Circuit panel’s Order reaffirming the Fifth Circuit’s initial stay of OSHA’s ETS applies nationwide.
In addition to the ETS, President Joseph Biden, on September 9, 2021, issued Executive Order 14042, which requires most federal contractors and subcontractors to mandate that, by January 18, 2022, their employees are fully vaccinated against COVID‑19.
In a November 30, 2021 Opinion and Order, the U.S. District Court for the Eastern District of Kentucky (“the Eastern District of Kentucky”) preliminarily enjoined the federal government from enforcing Executive Order 14042’s vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee. The Eastern District of Kentucky found that the petitioner States “are likely to succeed on the merits” “of their contention that “the [P]resident [cannot] use congressionally delegated authority to manage the procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors.”
Despite the Eastern District of Kentucky’s November 20, 2021 Opinion and Order, most federal contractors and subcontractors outside Kentucky, Ohio, and Tennessee remain obligated, by Executive Order 14042, to mandate that, by January 18, 2022, their employees are fully vaccinated against COVID‑19.
New Jersey Law
New Jersey employers can legally require their workers to receive COVID-19 vaccinations as long as the employers do not violate the New Jersey Law Against Discrimination (the “NJLAD”) and the regulations implementing the NJLAD. More specifically, an employer in New Jersey may require all employees physically entering the workplace to be fully vaccinated against COVID-19, as long as the employers reasonably accommodate those employees who do not get vaccinated against COVID-19 because of a sincerely held religious belief, practice, or observance, a disability, or a pregnancy.
Further, New Jersey recently has enacted affirmative COVID-19 vaccine mandates that cover many employees. Specifically, in New Jersey:
- As of September 7, 2021, all workers in certain state and private health care facilities and high-risk congregate settings are required to be fully vaccinated or subject to testing.
- As of October 18, 2021, all workers in preschool through Grade 12 schools are required to be fully vaccinated or subject to testing.
- As of October 18, 2021, all workers at state agencies, authorities, and colleges and universities are required to be fully vaccinated or subject to testing.
- As of November 1, 2021, all workers in all child care facilities are required to be fully vaccinated or subject to ongoing weekly testing.
Certain of these affirmative COVID-19 vaccine mandates, covering most workers in New Jersey, are further detailed below.
Health Care Facilities and High-Risk Congregate Settings
If workers in the health care facility or high-risk congregate setting in New Jersey have not submitted proof that they are fully vaccinated against COVID-19, then they are required to submit to a minimum of once or twice weekly testing.
Schools
In New Jersey, all part-time and full-time individuals, employed by all public, private, and parochial preschool programs and elementary and secondary schools, including charter and renaissance schools, are required to be fully vaccinated or submit to testing by October 18, 2021. Covered individuals include:
- Administrators;
- Teachers;
- Educational support professionals;
- Individuals providing food, custodial, and administrative support services,
- Substitute teachers, whether employed directly by a school or otherwise contracted; and
- Contractors, providers, and any other individuals performing work in a school whose job duties require them to make regular visits, including volunteers.
Vaccine and Testing Details
For New Jersey’s vaccine and testing requirements, workers are considered “fully vaccinated” for COVID-19 two weeks or more after they have received the second dose in a two-dose series or two weeks or more after they have received a single-dose vaccine. Vaccines must be currently authorized for emergency use or approved by the Food and Drug Administration (the “FDA”) or the World Health Organization (the “WHO”)
Workers can show proof of full vaccination by presenting:
- the CDC COVID-19 vaccination card issued at the vaccination site, or an electronic or physical copy;
- the official record from the New Jersey Immunization Information System (NJISS) or other immunization register;
- a record from a health care provider’s portal or medical record system on official letterhead signed by a licensed physician, nurse practitioner, physician’s assistant, registered nurse, or pharmacist;
- a military immunization or health record from the U.S. Armed Forces; or
- Docket mobile phone application record or any state-specific application that produces a digital health record.
Both antigen and molecular tests are acceptable for weekly testing.
If you are an executive or a professional in the New Jersey metro area and you believe that you have been wrongfully terminated, that you’ve been denied salary, bonuses, commissions, or other wages that are owed to you, or that your employer has failed or refused to reasonably accommodate your disability, call the New Jersey Employment Lawyer David S. Rich at (201) 740-2828 today.
