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What New Jersey Workers Should Know About the White House’s COVID-19 Vaccination Order

Vaccinations are among the most effective methods of fighting the COVID-19 pandemic, according to public health officials and other experts. The state government has established vaccination requirements for workers in certain fields. In early September 2021, the White House announced an upcoming measure that would direct large private employers to require their employees to get the vaccine or submit to weekly testing. This measure has not taken effect yet, and the actual rule might not be available for at least several more weeks. It is worthwhile to examine how this might affect New Jersey employees.

Current New Jersey Vaccine Requirements

New Jersey had no official vaccine mandates until late summer 2021. On August 2, the governor announced that certain workers would have to get vaccinated or get tested for COVID at least once a week. The governor’s order applies to state hospitals and correctional facilities, as well as private prisons, nursing homes, hospitals, inpatient rehab facilities, and home health agencies. These requirements took effect on September 7.

Additional vaccination requirements will take effect on future dates for employees in other workplaces, including:
– October 18: schools, state agencies, and public colleges and universities; and
– November 1: child care facilities.

Legal mandates for vaccinations are not new in this country. The U.S. Supreme Court affirmed that a state law allowing city and county governments to enact vaccine mandates was constitutional in Jacobson v. Massachusetts, 197 U.S. 11 (1905). During the current pandemic, the Supreme Court declined to review an appellate court order that allowed a public university’s vaccine mandate to stand. Unlike many of New Jersey’s recent measures and the ones reviewed by the Supreme Court over a century ago, the White House’s planned measure is directed more at employers than individuals or employees.

Emergency Temporary Standards Under the OSH Act

The White House’s vaccination plan is based on the “General Duty Clause” of the Occupational Health and Safety Act (OSH Act), which directs employers to provide workspaces that “are free from recognized hazards” that threaten to cause or are causing “death or serious physical harm” to employees. The Occupational Safety and Health Administration (OSHA) has the authority to establish and enforce safety standards for employers.

Ordinarily, safety standards must go through the process established by the Administrative Procedure Act. If, however, OSHA finds that workers face a “grave danger” that requires immediate action, it can enact an Emergency Temporary Standard (ETS) that takes effect immediately. OSHA has already enacted one ETS related to COVID-19, which applies to the healthcare industry.

OSHA’s COVID-19 Vaccine ETS

On September 9, the president directed OSHA to create an ETS that applies to employers with more than one hundred employees. Covered employers would be required to make certain that their employees:
– Are vaccinated against COVID-19; or
– Are tested at least once a week for COVID-19, and present a negative test result in order to return to work after testing positive.
The ETS could apply to eighty million workers nationwide. It is not clear how many employees in New Jersey would be covered, but the number is probably in the millions. OSHA has not stated when it expects to have the ETS ready for publication.

The employment attorneys at the Resnick Law Group represent workers in New Jersey and New York in claims for discrimination and other unlawful practices under federal and state law. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to see how we can help you.

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