Can NJ Employers Mandate COVID-19 Vaccinations for Employees to Return to Work?

While return to work plans involve a number of important considerations, one of the most significant (and controversial) is whether employees should be required to be vaccinated against COVID-19...

With vaccination rates up and infection rates down, many employers are preparing for a return to the workplace. While return to work plans involve a number of important considerations, one of the most significant (and controversial) is whether employees should be required to be vaccinated against COVID-19.

So far, the U.S. Food and Drug Administration (FDA) has granted emergency use authorization for the Pfizer-BioNTech, Moderna, and Johnson & Johnson vaccines. While many workers have willingly been vaccinated, a sizable segment of the population remains hesitant to get a COVID-19 vaccine, which leaves employers in a tough position.

EEOC Guidance Regarding Mandatory COVID-19 Vaccinations

Generally, whether an employer may require COVID-19 vaccination is a matter of state or other applicable law. While federal law does not directly address mandatory vaccination, the Equal Employment Opportunity Commission (EEOC) recently issued updated guidance confirming that employers can require their employees who are returning to the job get vaccinated against COVID-19, so long as they comply with the Americans With Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII).

As the EEOC guidance highlights, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The undue hardship depends on whether the accommodation is for a disability or for religion.

Disability Accommodation

Under the ADA, an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring COVID-19 vaccination, if the standard is job-related and consistent with business necessity. If an employee can’t be vaccinated due to a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace.  A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.

Under 29 C.F.R. 1630.2(r), employers must conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.  “The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19,” the EEOC guidance states.  “Such medical knowledge may include, for example, the level of community spread at the time of the assessment.”

If the assessment demonstrates that the employee would pose a direct threat to self or others, the employer must then consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. According to the EEOC guidance, potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace. 

Religious Accommodation

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. 

As the EEOC guidance explains, the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar.  Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance, unless an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance. In such cases, the employer would be justified in requesting additional supporting information. 

The EEOC guidance also notes that the undue burden standard under Title VII is more lenient than the ADA standard. Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. According to the EEOC, considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine. 

New Jersey Guidance on Requiring COVID-19 Vaccinations

Several states have enacted or are considering employment laws that address COVID-19 vaccination. According to the National Academy for State Health Policy, at least 85 bills have been introduced to restrict an employer’s ability to require workers to get vaccinated and/or to terminate someone who refuses to get immunized.

New Jersey is not one of those states. Rather, it has issued COVID-19 vaccination guidance confirming that employers may require workers to get the COVID-19 vaccine as a condition of entering the workplace. The guidance provides:

If an employee has a disability that precludes them from getting a COVID-19 vaccine, has been specifically advised by their doctor not to get the COVID-19 vaccine while pregnant or breastfeeding, or has a sincerely held religious belief, practice or observance that precludes them from getting a COVID-19 vaccine, employers must provide a reasonable accommodation from their mandatory vaccine policy, unless doing so would impose an undue burden on their operations.

In determining the burden placed on employers by unvaccinated workers, the New Jersey guidance advises that safety, including the safety of the employee, coworkers, clients, and customers, is a factor in evaluating whether a potential accommodation would be reasonable. “An employer must base its decisions regarding any potential safety hazard on objective, scientific evidence, including evidence reflected in policies and guidance from federal, state, and local authorities (including the CDC), and not on unfounded assumptions or stereotypes,” the guidance further states.

With regard to reasonable accommodations, New Jersey’s guidance advises that a reasonable accommodation may include allowing the employee to continue to work remotely, or otherwise to work in a manner that would reduce or eliminate the risk of harm to other employees or to the public. It may also include providing the employee with personal protective equipment that sufficiently mitigates the employee’s risk of COVID-19 transmission and exposure.

Finally, the guidance states that under the New Jersey Law Against Discrimination, if there is no reasonable accommodation that the employer can provide that would mitigate the risk of COVID-19 transmission to its employees and customers, then the employer may enforce its policy of excluding unvaccinated employees from the physical workplace, even if the employee is unvaccinated because of a disability, pregnancy, or breastfeeding, or a sincerely held religious belief. However, it is important to note that employers must also consider other applicable laws, regulations, or policies before imposing discipline.

Next Steps for Employers

To lower the risk of liability, many employers are encouraging vaccination rather than mandating it. For instance, many companies have enacted policies stating that unvaccinated employees must be tested daily for COVID-19 and wear masks when they return to the office. Other employers are moving forward with plans to require vaccination. Mandatory vaccination is particularly prevalent among colleges, hospitals, and nursing home facilities, where there is a higher risk of infection.

If you are considering a mandatory vaccine policy for your employees, there are steps you can take to reduce the legal risks. To start, it is important to clearly communicate the policy to your employees. The vaccine policy should address how employees can receive their shots, i.e., on their own or through the employer; the date by which employees must receive the vaccine; how workers should provide proof of vaccination; the procedure for requesting an exemption from the mandatory vaccine requirement; and the consequences of failing to get vaccinated without an exemption. Additionally, prior to instituting a mandatory vaccination policy, employers should provide managers, supervisors, and those responsible for implementing the policy with clear guidance regarding how to handle accommodation requests related to the policy. Finally, it is always advisable to work with experienced counsel when implementing a new employee policy, particularly one that has the potential to result in legal challenges. At Scarinci Hollenbeck, we are here to help New Jersey employer safely reopen their workplaces while also reducing the liability risks.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Sarah Tornetta, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.