The coronavirus pandemic continues to hit New Jersey particularly hard, although some good news has appeared in the past few weeks. Two vaccines are gradually becoming available. Certain groups of people will receive the vaccine first, starting with healthcare workers. Eventually, the vaccine will become more widely available. This will raise a question that appears almost every flu season: Can New Jersey employers require their employees to get the COVID vaccine? The answer is, of course, complicated. Employees in some jobs are required by state law to get vaccinated against influenza. Most New Jersey workers are under no legal mandate regarding vaccines, but their employers may be able to require them. Much of this area of law remains unsettled. What little case law exists is based on flu vaccine refusals, so New Jersey’s courts have yet to apply it to COVID-19.
New Jersey Mandatory Vaccination Law
New Jersey has no statewide requirement for employees to receive vaccinations. Employees of any “general or special hospital, nursing home, or home health care agency” licensed by the state must receive an annual flu vaccine. N.J. Rev. Stat. § 26:2H-18.79. This law allows medical exemptions but no religious exemptions. Outside of healthcare, employers have discretion over whether to require vaccinations.
New Jersey Employment Discrimination Law
Two common objections to mandatory vaccines come from people who are unable to receive them for medical reasons and people who object to them on religious grounds.
The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination on the basis of disability. It defines “disability” very broadly. See id. at § 10:5-5(q). It may include medical conditions that preclude getting a vaccination because of, for example, suppressed immunity.
An employee with such a condition may also meet the definition of “disability” found in the federal Americans with Disabilities Act (ADA). This statute requires employers to make “reasonable accommodations” for employees with disabilities. 42 U.S.C. § 12112(b)(5). The extent to which an employer can accommodate an employee depends on the type of job and the risks posed to others in the workplace.
The NJLAD also prohibits employers from mandating anything “that would require [an employee] to violate or forego a sincerely held religious practice” and requires them to “reasonably accommodate” the employee’s religious practice. N.J. Rev. Stat. § 10:5-12(q)(1). The employer is not obligated to make an accommodation, however, if doing so would cause “unreasonable interference with the safe or efficient operation of the workplace.” Id. at § 10:5-12(q)(3). As with objections based on disability, an employer’s ability to accommodate an employee’s religious objection may depend on the type of workplace it operates.
The New Jersey Appellate Division has ruled on questions about objections to the flu vaccine at least twice in the past six years. In 2014, the court held that the state violated an employee’s First Amendment rights when it endorsed the employer’s mandatory flu vaccine policy while allowing religious exemptions while refusing to accommodate a non-religious, non-medical objection.
The 2014 ruling has a limited impact on employers themselves, but it influenced a 2016 decision. The court outlined how an employee might prevail in a claim for religious discrimination based on flu vaccine refusal.
If you are involved in a religious discrimination matter with your employer in New Jersey or New York, the employment attorneys at the Resnick Law Group are here to help. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation with a member of our team.