Monika Dziewa, Esq.
Over the last couple of months, the effects of the coronavirus (the “COVID-19) outbreak have been widespread, disrupting numerous businesses around the world. With rapidly evolving situation, new laws and guidance, it is important for employers to closely monitor the pandemic, workplace policies and procedures implemented to protect workers from COVID-19.
In accordance with Executive Order 252, 253 and 263, signed by Governor Phil Murphy, all workers in pre-school to Grade 12 schools, certain healthcare facilities, high-risk congregate settings, all workers at state agencies, authorities, colleges, universities, and all childcare workers must be vaccinated or subject to COVID-19 testing at minimum one to two times per week. In addition, President Biden’s COVID-19 Action Plan announced that OSHA is developing a regulation requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or require weekly testing for unvaccinated workers.
For businesses, to which the above laws may or may not apply, there are a variety of aspects to evaluate in the context of mandatory workplace vaccinations, and employers should thoroughly take into consideration these issues before selecting a specific policy approach.
As a general rule, mandatory vaccination programs are legal under federal anti-discrimination laws; however, the employers implementing these programs are obligated, under the Americans with Disabilities Act (the “ADA”) and Title VII of the Civil Rights Act of 1964, to reasonably accommodate an employee’s disability or sincerely held religious belief, which might prevent them from getting vaccinated. Nonetheless, these laws do account for exceptions, and if the employer can demonstrate that the accommodation would create an undue hardship, which includes adversity associated with costs, finances of the business, impact of the accommodation on business operations, employer’s obligation to provide such accommodation might be excused.
As long as, employers comply with their obligation to provide reasonable accommodation, and do not treat employees differently based on protected characteristics, employers are allowed to ban their employees from the workplace, if they refuse to get vaccinated. Employees who cannot be vaccinated may pose a risk to their coworkers or customers, and employers have the option to give the employee leave of absence or have them work remotely. This is decided by evaluating factors like job functions and severity of risk. In addition, in “employment at will” jurisdictions like New Jersey, employees can be fired for any reason, hence, if such reason is not illegal or discriminatory, workers may get fired for refusing the COVID-19 vaccine.
It is important to note that employees can use their NJ Earned Sick Leave to get their COVID-19 vaccine, including for travel to and from their appointment and recovery from side effects. Additionally, if mandatory vaccination policy is implemented at a workplace, employers are also strongly encouraged to pay their employees full salary for time off related to obtaining the vaccine.
Regardless of the mandatory vaccination policies, employers must also continue to conform with state and local policies related to COVID-19 and public health, including mask mandates, infection prevention and control measures.
John Onal & Associates’ lawyers are available to assist in addressing any questions you may have regarding your business’ situation.
The information and options provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only and may not constitute the most up-to-date legal information.