Last week, the New Jersey Departments of Health (DOH) and Law and Public Safety issued guidance which allows employers to require employees to get COVID-19 vaccine under New Jersey law.
There are, however, some very important, albeit limited, exceptions which will require the employer to provide a reasonable accommodation if an employee:
1. has a disability relevant to the vaccine;
2. is pregnant or breastfeeding; or
3. has a sincerely held religious belief, practice or observance that precludes them from getting a COVID-19 vaccine.
If an employee informs the employer that he or she is covered by one or more of these exceptions, the employer must engage in the interactive process with the employee and provide a reasonable accommodation from its mandatory vaccine policy, unless doing so would impose an undue burden on its operations (a very high bar) or if the risk of COVID-19 infection in the workplace cannot be avoided.
As with all other requests for a accommodation, employers are permitted to ask for documentation supporting the employee’s reasons for not getting the vaccine. Be careful, however, when it comes to an employee who claims a sincerely held religious belief, practice or observance that precludes him or her from getting a COVID-19 vaccine because, generally speaking, an employer generally may not question the sincerity of that employee's religious beliefs, practices or observance, absent an objective basis to do so. In that case, the employer may make a limited inquiry into the facts and circumstances supporting the employee's request.
If the employer cannot reasonably accommodate the employee, or if the employee is not entitled to a reasonable accommodation, it may exclude the employee from the workplace. However, do not discipline an employee simply because they are unable to get a vaccine in the moment.
However, before terminating employment, the employer should determine if any other rights apply under the EEO laws or other federal, state, and local authorities.
The Bottom Line: As the vaccine becomes more available and as New Jersey opens up, many employers will want to require their employees to get the vaccine in order to prevent, or at least mitigate against, transmission in the workplace. Deciding who gets a pass involves complicated areas of employment law. Accordingly, we urge all employers to review New Jersey’s FAQs, the guidance issues by the U.S. Equal Employment Opportunity Commission in December 2020, and consult with competent labor and employment counsel.