The COVID-19 infection rate is skyrocketing, and the number of lives lost to this virus continues to rise. Over 300,000 Americans have died of COVID-19 and there are over 18 million cases in the United States. It is no wonder people are excited about the FDA approval of two COVID-19 vaccines. There are a lot of questions about these vaccines and when they will be available. McOmber McOmber & Luber, P.C. has the latest information and what you can expect over the next few months.
A Phased-In Approach
Operation Warp Speed (OWS), a partnership of the U.S. Department of Health and Human Services, the Department of Defense and the private sector, is coordinating the vaccine distribution. It is a massive undertaking involving all levels of government. OWS expects to distribute more than 300 million doses of the COVID-19 vaccine by mid-2021.
Distribution of the vaccine is being phased in. A U.S. Centers for Disease Control (CDC) advisory panel voted to give first priority to healthcare workers and nursing home residents and staff. www.cdc.gov. This group will be followed by high-risk individuals and essential workers such as grocery store workers. The New Jersey Department of Health is following the CDC recommendations for vaccine distribution. On December 15, New Jersey healthcare workers started receiving their vaccine. New Jersey is hoping to vaccinate 70 percent of its population, 4.7 million adults, in six months.
The CDC believes the majority of Americans will be vaccinated well into 2021, however a vaccine will not be available for young children until studies are complete. The federal government is providing the vaccine to the American people free of charge. CDC, Frequently Asked Questions About COVID-19 Vaccination, December 3, 2020.
If I Live in New Jersey, Where and When Can I get the COVID-19 Vaccine?
The COVID-19 vaccine is being phased-in and is currently not available to the general public. Those working in healthcare and nursing homes are receiving the first vaccines. This will be followed by essential workers and those in high-risk categories. The general public is last in line and may not receive the vaccine until late spring/early summer, depending on the availability of vaccine supplies.
To handle the millions of people to be vaccinated, New Jersey is setting up 6 mega sites at the following locations:
Atlantic County: Atlantic City Convention Center
Bergen County: Racetrack at Meadowlands, East Rutherford
Burlington County: Moorestown Mall
Gloucester County: Rowan College of South Jersey, Sewell
Middlesex County: New Jersey Convention and Exposition Center, Edison
Morris County: Rockaway Townsquare
These sites are expected to open in early January and will start with healthcare workers. The New Jersey Health Department is in the process of setting up an online portal to notify people when they can get vaccinated, where they can get vaccinated and to schedule an appointment.
Employers Are Required to Keep Employees Safe
Pursuant to the Occupational Safety and Health Act (OSA) employers are required to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. The COVID-19 outbreak is no exception. The U.S. Occupational Safety and Health Administration (OSHA) requires employers to provide personal protective equipment (PPE) to their employees and has set up a system for employees to report safety violations. 29 U.S.C. § 660(c).
In addition, Governor Murphy’s Executive Order 192 requires employers to ensure safety in the workplace through a variety of measures such as providing staff with appropriate masks, plastic barriers, sanitizing stations and the like.
If your employer is not following these procedures, you can file a complaint with OSHA or the New Jersey Department of Labor and Workforce Development (DOLW).
Are Vaccines Required as a Condition of Employment?
Currently, there is no requirement that employees take the COVID-19 vaccine as a condition of employment. Instead, most employers will likely encourage their employees to receive the vaccination since studies show they are 95% effective and will dramatically decrease the number of lives lost.
If you work in healthcare or the nursing home system, your employer may require the vaccine because you are at high risk for getting and spreading COVID-19. Currently New Jersey requires healthcare workers to get the flu vaccine so it follows that the state and/or healthcare employers may require the COVID-19 vaccine. N.J.S.A. § 26:2H18.79-18.81 (P.L. 2019 c. 330).
Medical Condition Exemption
If you have a serious medical condition, you may be exempt from taking the vaccine. The Americans With Disabilities Act (ADA) protects employees from disability discrimination and an employer cannot restrict an employee from the workplace without providing a reasonable accommodation. The employer must provide the accommodation unless it poses an “undue hardship” on the employer or the employee poses a “direct threat” to the safety of others.
The EEOC has stated that “a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.” If this occurs, the employer has to engage in the interactive process to determine if a reasonable accommodation is possible, such as teleworking. If a reasonable accommodation is not possible, then the employer is allowed to physically exclude the employee from the workplace. This does not mean that an employer can automatically terminate the employee. U.S. EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws, Technical Assistance Questions and Answers, updated December 16, 2020.
An individual’s religious beliefs may also provide an exemption to vaccination. Pursuant to Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination employers cannot discriminate against employees on the basis of their religion and must accommodate religious observances and practices absent undue hardship. N.J.S.A. § 10:15-12(a). When making this determination, a court must distinguish between protected religious observances and mere desires or preferences. Fallon v. Mercy Catholic Med. Ctr., 877 F.3d 487 (3d. Cir. 2017).
If you have a sincerely held religious belief that prevents you from taking the vaccine, your employer will have to determine if a reasonable accommodation at your workplace is possible.
Requesting an Accommodation
If you believe you are unable to take the vaccine due to a medical or religious reason, you need to raise your concerns with your employer who must engage in an “interactive process” followed by a discussion of reasonable accommodations. Some accommodations may include modifying your work duties to avoid contact with others, rearranging your work schedule to avoid contact with others, working from home if the job does not require your physical presence in the workplace, or wearing a protective facemask throughout the workday. The Job Accommodation Network (JAN) is a good resource for employers and employees who are discussing accommodations due to a disability or religious exemption. www.askjan.org
It is unlawful for managers or supervisors to retaliate against employees for requesting an accommodation or to disclose that an employee is receiving an accommodation.
COVID-19 cases are on the rise, but there is great hope that several highly effective vaccines will make a dramatic difference in reducing cases and saving lives. McOmber McOmber & Luber P.C. is following the latest developments and is here to guide you through these difficult times. If you have questions or concerns about how your employer is keeping you safe in the workplace, we can help. Please call our office in Red Bank, New Jersey at 732-842-6500, our Newark, New Jersey office at 973-878-9040, or our Marlton, New Jersey office at 856-985-9800 to find out more.