We are now almost a year and a half into the COVID-19 pandemic, and while the situation has improved considerably, we still face many problems. Several different vaccines are now available to most of the population, and they have shown that they are very effective against the early strains of the virus. Like all vaccines, though, they are not 100% effective. As of mid-July 2021, nearly seventy percent of adults in New Jersey are fully vaccinated. In some areas of the state, however, the rate remains below fifty percent. This raises two major questions for us as employment lawyers. First, what does New Jersey law have to say about employers that require their employees to get vaccinated? The answer to this question has changed over the last year, but it appears to be resolving in favor of employer vaccine mandates. The second question is whether a New Jersey employer that does not require vaccines violates workplace safety laws. This question does not have a clear answer.
Employer Vaccine Mandates
The only specific vaccine requirement found in New Jersey’s statutes, N.J. Rev. Stat. § 26:2H-18.79, involves the influenza vaccine. It requires healthcare workers to get the influenza vaccine annually. Employees cannot opt out of the flu vaccine, except for certain medical reasons.
State health officials are taking the position that employers can mandate vaccination for COVID. Guidance issued by the New Jersey Department of Health in March 2021 states that employers can require employees to get the vaccine as a condition of returning to the workplace, with three exemptions:
1. A disability that precludes an employee from getting the vaccine;
2. A doctor’s recommendation not to get the vaccine during pregnancy or breastfeeding; or
3. A “sincerely held religious belief, practice or observance.”
An employer must provide a reasonable accommodation to an employee who falls under one of these exemptions, unless doing so would pose an undue burden.
Employers have started requiring vaccinations. The state’s largest private healthcare system announced a vaccine mandate for all of its employees in May 2021. In July, it fired six employees who refused to get the vaccine. While healthcare workers in similar circumstances in at least one other state have sued for wrongful termination, so far no legal actions have been filed in New Jersey.
Workplace Safety Laws
On June 4, 2021, the governor of New Jersey issued Executive Order 244, which terminated the public health emergency originally declared in March 2020, but noted that the state of emergency remains in effect. Most state mandates regarding masks and social distancing are no longer in force. The state has left most safety measures to local governments, businesses, and individuals. What legal duties, if any, do employers now have to their employees regarding safety from COVID?
The state has issued safety guidelines, but few requirements for employers. Businesses cannot prevent their employees or customers from wearing masks, and they are encouraged to require masks. Some federal safety protections remain in place, overseen by the Occupational Safety and Health Administration (OSHA). Federal and state workplace safety laws do not, however, allow workers to bring causes of action against their employers. OSHA’s guidance regarding COVID in the workplace only consists of recommendations, meaning it is not legally enforceable.
The employment attorneys at the Resnick Law Group can assist you if you are involved in a dispute with your employer in New Jersey or New York. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation with a member of our experienced and knowledgeable team.