Essentially adopting previously issued guidance from the Equal Employment Opportunity Commission (“EEOC”), the State of New Jersey will permit employers to require employees receive the COVID-19 vaccination before they are permitted to return to work.

There are three exemptions that employees may rely on if employers choose to mandate the vaccine. Employees do not have to take the COVID-19 vaccine if they have a disability, if their doctor has advised them not to receive the vaccine while they are pregnant or breastfeeding, or because of a sincerely held religious belief.

According to the guidance, employers are permitted to request medical documentation to confirm a disability or to confirm that an employee was instructed not to take the COVID-19 vaccine by their medical provider.  If the basis for exemption from an employer’s mandatory COVID-19 vaccination policy is a sincerely held religious belief, practice, or observance, an employer may not question the validity of the belief unless the employer has an objective basis for doing so, and must limit the inquiry into the facts and circumstances of the employee’s request.

Employers should be aware that if an employee has one of the above reasons for not taking the COVID-19 vaccine, a reasonable accommodation from any mandatory vaccine policy must be provided, “unless doing so would impose an undue burden on their operations.”

When evaluating whether to grant such accommodations, employers should consider the safety of other employees, clients, and customers in determining what accommodations would be reasonable. For example, a reasonable accommodation could include permitting employees to work remotely, or in a manner otherwise designed to reduce or eliminate the risk of harm to others, such as the provision of personal protective equipment.

For employers with a unionized workforce, an existing collective bargaining agreement may permit the employer to unilaterally develop and implement a mandatory vaccine program. However, it also may be the case that bargaining with a union is required to initiate such a process.  Even when permitted, an employer will be obliged to engage in bargaining of the effects of instituting a mandatory vaccination environment.

This guidance is well timed, as more persons employed in positions difficult to perform remotely become eligible for vaccination in the coming days. The following groups of people become eligible for the COVID-19 vaccination in New Jersey on March 29, 2021:

  • Food production, agriculture and food distribution (including grocery store and restaurant workers)
  • Eldercare and support
  • Warehousing and logistics
  • Social services support staff
  • Elections personnel
  • Hospitality
  • Medical supply chain
  • Postal and shipping services
  • Clergy
  • Judicial system

Additional New Jersians become eligible on April 5, 2021, including all people over the age of 55.  Notably, Rutgers University will require the COVID-19 vaccine for students who are enrolled for the 2021 fall semester.

Employer Takeaways

As additional COVID-19 vaccines become available, and places of business begin to expand their in-office work force, New Jersey is permitting employers to require vaccination of employees before they can return to the workplace. Employers should ensure they have policies in place to keep any confidential medical records private, and should insure that any inquiry into sincerely held religious beliefs are lawful.  As we have done throughout this pandemic and across all industries, Seyfarth attorneys are available to assist employers with ensuring compliance.