New Jersey employers may require employees to receive the COVID-19 vaccine in order to enter the physical workplace according to policy issued on NJ State Government website. The EEOC issued a press release last week with a similar stance, that Federal laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act.
An exception to a mandatory vaccine policy may be when an employee has been advised by their medical doctor not to get the COVID-19 vaccine while pregnant or breastfeeding. Other possible exceptions are when an employee has a disability that prevents them from receiving a COVID-19 vaccine, or has a sincerely held religious belief, practice or observance that precludes them from getting vaccinated, i.e., the employer must still comply with the New Jersey Law Against Discrimination, the Rehabilitation Act, and the American with Disabilities Act.
The employer does not have to provide a reasonable accommodation from their mandatory vaccine policy in the case of pregnancy, breastfeeding, disability, or sincerely held religious belief, practice or observance, when doing so would impose an undue burden on the employer’s operations.
An employee who requests a reasonable accommodation on the basis of disability, pregnancy or breastfeeding may be required to present requested medical documentation to confirm the disability, or to confirm a reasonable accommodation on the basis of pregnancy or breastfeeding, that the employee was advised by her medical doctor to seek such accommodation.
Employers must make certain that all information about an employee's disability is kept confidential and as a confidential medical record.
If a sincerely held religious belief, practice, or observance prevents one from getting a COVID-19 vaccine, an employer generally may not question the sincerity of an employee's religious beliefs. However, the employer may make an inquiry into the facts and circumstances supporting the employee's request when the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance.
A reasonable accommodation for employees who qualify and have provided the requested medical documentation to their employer, could be allowing the employee to continue to work remotely (the most common). Another could be providing the employee with substantial personal protective equipment that sufficiently mitigates the employee's risk of COVID-19 transmission and exposure to co-workers and the public.
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 can 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. Note: the employer can not automatically discipline an employee who cannot get vaccinated, as the employer may be precluded from doing so by other laws, regulations, or policies.
Federal Guidelines
According to a press release issued last week by the EEOC:
Employers may require all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA, the Rehabilitation Act, and Title VII of the Civil Rights Act of 1964.
Employers are allowed to educate employees about the benefits of Covid-19 vaccinations. They may provide employees and their family members with information educating them about COVID-19 vaccines and raise awareness about the benefits of COVID-19 vaccinations.
Federal laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic.
It is legal for employers who are administering vaccines to their employees to offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
Note: This brief summary does not constitute legal advice as every matter is fact specific. This article is not intended in any manner to be giving legal advice in any particular matter. If you have questions regarding your rights in the workplace or caught Covid-19 at work and are going to file for Workers Compensation, you should consult with an attorney prior to filing.
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