In line with the EEOC’s previously-issued guidance regarding mandatory vaccination, New Jersey has issued guidance affirming that, with limited exceptions, employers may require their employees to get the COVID-19 vaccine prior to returning to in-person work.
The primary exception to the mandatory vaccination requirement is where an employee cannot receive the vaccine because of a disability, due to pregnancy or breastfeeding, or because of a sincerely held religious belief, practice or observance (a “religious reason”). In that case, the employer must reasonably accommodate the employee. Reasonable accommodations may include permitting employees to work remotely, take paid or unpaid leave, or otherwise work in a manner that sufficiently mitigates the risk of COVID-19 transmission and exposure.
Employers may request medical documentation to support that an employee’s disability, pregnancy or breastfeeding prevents the employee from safely obtaining a COVID-19 vaccine. Employers must ensure that all information about an employee’s medical condition is kept in a confidential medical record separate from the employee’s personnel file.
However, employers generally may not question the sincerity of an employee’s religious reason unless the employer has an objective basis for doing so. In that case, the employer may make a limited inquiry into the facts and circumstances supporting the employee’s request.
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, the employer can enforce its mandatory vaccination policy by excluding the unvaccinated employee from the physical workplace. However, that does not mean that the employer can automatically terminate employment. Employers should consult with legal counsel before taking any adverse action against an employee who cannot receive a vaccine for the reasons described above.
Finally, we note that our clients with unionized workforces are required to negotiate over the implementation of a mandatory vaccination policy. Therefore, employers with a unionized workforce who wish to implement a mandatory vaccination policy should consult with legal counsel regarding negotiation of such a policy.
* * *
If you have questions or would like additional information, please contact any of our Labor & Employment attorneys or the primary EGS attorney with whom you work.