New Jersey Guidance Establishes That Employers Can Require That Employees Receive COVID-19 Vaccine to Enter Workplace
With COVID-19 vaccinations becoming more accessible to individuals, the question on many employers’ minds is whether the employer can now require its employees to be vaccinated in order to return to the workplace. On March 19, 2021, the New Jersey Department of Health (DOH) addressed this question and published guidance stating that an employer can require that its employees receive the COVID-19 vaccine to return to the workplace. The DOH guidance, however, does include exceptions to mandatory vaccination policies implemented by employers as follows: if an employee cannot get the COVID-19 vaccine because of a disability that precludes him or her from being vaccinated; where an employee’s doctor has advised the employee not to get the vaccine while pregnant or breastfeeding; or where an employee has a sincerely held religious belief, practice, or observance that precludes him or her from receiving the vaccine, an employer must provide a reasonable accommodation from its mandatory vaccine policy – unless doing so would impose an undue burden on its operations.
In the event an employee seeks to be exempt from a mandatory vaccination policy for medical reasons (described above), his or her employer may request medical documentation from the employee to confirm the employee (i) has a disability precluding him or her from vaccination, or (ii) has been advised by her doctor not to get the vaccine because of pregnancy or breastfeeding. As a reminder, employers must ensure that all information and/or documentation collected about an employee’s disability or medical condition remains confidential. Additionally, if an employee does not wish to obtain the vaccine due to a sincerely held religious belief, practice, or observance, the employer may not question the sincerity of the reason, unless the employer has an “objective basis” for doing so, and, in that case, the employer may make only a “limited inquiry” into the facts and circumstances supporting the employee’s request and beliefs.
A reasonable accommodation may include permitting an employee to continue to work remotely or otherwise work in a manner that limits the risk of any harm to other employees or the public, or providing an employee with PPE that “sufficiently mitigates” an employee’s risk of COVID-19 transmission and exposure. The DOH guidance requires an employer to evaluate any accommodation decisions in consideration of possible safety hazards based on “objective, scientific evidence” such as that stated in “policies and guidance from federal, state, and local authorities” (e.g., the Centers for Disease Control and Prevention [CDC]) as opposed to “unfounded assumptions or stereotypes.”
The guidance explains that, under the New Jersey Law Against Discrimination, if there is no “reasonable accommodation” an employer may provide to mitigate the risk of COVID-19 transmission to others in the workplace (e.g., employees and customers), then the employer is permitted to enforce its mandatory vaccination policy (thus excluding unvaccinated employees from the physical workplace) – even where the employee is unvaccinated due to a disability, pregnancy or breastfeeding, or due to a sincerely held religious belief. An employer, however, may not “automatically discipline” an employee who cannot get vaccinated as it may be precluded from doing so under other laws, regulations, or policies.
Given the above, employers should evaluate their COVID-19 policies, including those relating to vaccination, and continue to monitor the law for any new developments. Employers with multi-state operations must continue to be mindful of laws in other states in which they have employees when drafting or revising any such policies.
The members of the Gibbons Employment & Labor Law Department are available to assist you in managing the many workplace issues and concerns during the COVID-19 pandemic. For assistance or additional information, please contact an attorney in the Employment & Labor Law Department.