After months of a steady decline in COVID-19 cases and deaths throughout the country, we are sadly starting to see numbers rise again. Experts believe this uptick is due to the slowing of vaccination rates and the more contagious Delta variant making its way through the population.
Many employers want too help reduce this spread and allow employees to return to their offices. As a result, many are considering requiring their employees to be vaccinated as a condition of employment. Employers including Facebook, Google, Netflix and Morgan Stanley, as well as some public institutions, have started to require vaccinations.
Vaccine Mandates in New Jersey
One of New Jersey’s largest health care employers, The Robert Wood Johnson Barnabas Health system (RWJB), was one of the state’s first employers to require vaccinations. As of their June 30th deadline, only six employees failed to get vaccinated. Because of this, RWJB terminated them.
Most recently, Governor Phil Murphy announced he is requiring workers in certain state and private health care facilities and high risk congregate settings to be vaccinated. By September 7, 2021, workers must be vaccinated or be subject to regular COVID-19 testing.
The main reason for the push toward mandatory vaccinations is that they are so effective at reducing COVID-19 illness and death. New Jersey, which has one of the highest vaccination rates in the country, is a prime example of this success. Since July 19, only .001 % of those who were fully vaccinated have died due to COVID-19.
Do you work in New Jersey and are wondering what this means for you? If so, McOmber McOmber & Luber, P.C. has answers to some of your common questions.
Can My Employer Require Me to Get the COVID-19 Vaccine?
Yes. The U.S. Equal Employment Opportunity Commission (EEOC) recently stated that employers can require vaccinations as long as they comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other EEOC laws. Likewise, New Jersey’s Department of Law and Public Safety has stated that mandatory vaccines are legal as long as they comply with the New Jersey Law Against Discrimination (LAD).
However, if an employee falls within the following categories, they may be exempt from an employer’s mandatory vaccination policy:
- The employee has a disability precluding them from getting the vaccine;
- The employee is pregnant or breastfeeding and their doctor advised them not to get the vaccine; or
- The employee has a sincerely held religious belief, practice or observance against vaccination.
Some employees have serious medical conditions which qualify as disabilities and cannot receive the COVID-19 vaccine. In this case, an employer may have to provide a reasonable accommodation. This is to allow the employee to continue to work in the workplace without compromising their health and the safety of others.
To comply with the ADA and LAD, an employer can ask the employee for medical documentation and make limited inquiries. In turn, they must make sure to keep this information confidential and separate from employment records.
Pregnancy or Breastfeeding Exception
According to the U.S. Centers for Disease Control and Prevention (CDC), pregnant and recently pregnant people are more likely to get severely ill with COVID-19 compared with non-pregnant people. The CDC has also concluded that the COVID-19 vaccine does not hurt lactating mothers or their breastfed babies. Therefore, the CDC recommends the COVID-19 vaccine for pregnant and breastfeeding mothers as well as consulting with one’s healthcare provider to discuss any concerns.
An employee may inform their employer that their doctor has advised them against getting the vaccine while they are pregnant or breastfeeding. Consequently, the parties should begin the interactive process of discussing possible reasonable accommodations. Again, employers are allowed to request medical documentation, but they must keep this information confidential.
Religious Belief Exception
An individual’s religious beliefs may also provide an exemption to an employer’s mandatory vaccination policy. Pursuant to Title VII of the Civil Rights Act of 1964 and the LAD, employers cannot discriminate against employees based on 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 may make a limited inquiry. They may look into the facts and circumstances supporting your request.
Requesting an Accommodation and the Interactive Process
If you believe you are unable to take the vaccine due to disability, pregnancy, breastfeeding, or on religious grounds, you need to raise your concerns with your employer. This is an interactive process whereby you and your employer discuss “reasonable accommodations.” Examples include requiring the employee to wear a mask, work a staggered shift, reassigning the employee to a position in a different workspace, or permitting an employee to work from home.
While the accommodation is meant to keep you and others safe, it cannot impose an “undue burden” on the employer’s operations.
If a reasonable accommodation is not possible, then the employer can enforce its policy of excluding unvaccinated employees from the workplace. However, this does not mean that an employer can automatically terminate the employee. According to EEOC guidance and the New Jersey LAD, this may violate other laws, regulations, or policies.
Managers and supervisors are prohibited from retaliating against employees who request an accommodation.
Can I Be Terminated if I Do Not Comply with My Employer’s Mandatory Vaccination Policy?
Maybe. If your employer requires you to get a COVID-19 vaccine as a condition of employment and you do not have a valid exemption, an employer may be able to terminate you. However, an employer cannot terminate an employee in violation of federal or state discrimination laws such as Title VII and the LAD. Likewise, there could be complications if an employee has an employment contract or is working under a collective bargaining agreement. Employers should be careful not to violate the terms of those agreements.
Get Legal Assistance
COVID-19 cases are once again on the rise, but with more people getting the COVID-19 vaccine, this trend can be reversed. McOmber McOmber & Luber P.C. is following the latest developments and is here to guide you through these uncertain 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 Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-787-9040 to find out more.