The numbers are deeply troubling. Even though the Center for Disease Control (CDC) has repeatedly made clear that COVID-19 vaccines are overwhelming safe and effective and continue to undergo the most intensive safety monitoring in U.S. history, New Jersey employers are left to confront the reality of a large segment of their workforce who are either unwilling to vaccinate or hesitant to do so. As of August 1, 2021, 11.1 million COVID-19 vaccines have been administered in New Jersey of which 5 million are fully vaccinated residents, or 58.5% of our total state population. This means over 40% of our state population remains unvaccinated. The low rate of vaccination among young adults is particularly concerning with U.S. News & World Report reporting the vaccination rate for those 18-24 is only 50% and 41%, respectively. Unvaccinated workers pose a threat of spreading COVID-19 in their respective workplaces by risking the health of their coworkers (including their coworkers’ families and others they may come into contact with) and undermining the safe and efficient operation of the businesses they work for. To combat this, New Jersey employers can legally require their workers to vaccinate so long as they do not violate laws prohibiting workplace discrimination.
On May 28, 2021, the federal Equal Employment Opportunity Commission (EEOC) issued a press release proclaiming that federal equal employment opportunity 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 of 1964…” The EEOC’s May 28th guidance should prove persuasive on our New Jersey courts when applying New Jersey’s Law Against Discrimination (LAD) because our state courts look to federal law when interpreting the LAD. Victor v. State, 203 N.J. 383 (2010); see also Raspa v. Office of Sheriff of County of Gloucester, 191 N.J. 323 (2007).
Under the LAD, employers are required to reasonably accommodate an employee’s disability or sincerely held religious beliefs so long as doing so does not create an undue hardship on the employer’s business, for the company, or a coworker(s). N.J.S.A., 10:5-12; N.J.A.C., 13:13-2.5. A caveat to this is that New Jersey health care facility workers cannot refuse to vaccinate unless they qualify for a medical exemption. N.J.S.A., 26:2H-18.79. See http://www.nj.gov/health/forms/imm-53.pdf. Employer provided reasonable accommodations for those workers who cannot vaccinate due to a medical condition or sincerely held religious belief may include, but are not limited to, being required to wear a mask, presenting proof of periodic negative COVID-19 test results, working at social distance form coworkers, teleworking remotely from home, and/or working a modified shift or reassignment.
NPR reports that 97% of people entering hospitals for COVID-19 are unvaccinated. In response to this clear and present danger, employers in ever increasing numbers nationwide are beginning to impose mandatory vaccine mandates on their workers by making proof of vaccination a condition of continued employment. The surge in infected cases caused by the delta variant has prompted U.S. companies like Google, Facebook, Uber, and Morgan Stanley to require workers to obtain COVID-19 vaccinations. Walt Disney Co. informed last week of vaccination mandates for workers who are salaried and non-union, and Tyson Foods announced earlier this week that it will require its 120,000 U.S. workers to be vaccinated by November, making it the largest food company to mandate vaccinations. As stated by Claudia Coplein, Tyson’s chief medical officer, “Getting vaccinated against Covid-19 is the single most effective thing we can do to protect our team members, their families and their communities.” Similarly, President Joe Biden recently announced that all federal employees and contractors must get vaccinated or be subject to weekly testing and lose privileges such as official travel. In furtherance of this end, the United States Department of Veterans Affairs on Monday became the first major federal agency to require health care workers to get the COVID-19 vaccine.
Earlier this week the U.S. Justice Department addressed whether workers could resist vaccinations based on the argument that the federal Food, Drug & Cosmetic Act prohibits employers from requiring COVID-19 vaccinations with shots that have only been approved by the FDA for emergency use as is the case with the COVID-19 vaccines currently in use. In rejecting this argument, the Justice Department stated that while the law in question requires individuals to be informed of their “option to accept or refuse” a shot of a vaccine approved for emergency use only, it does not prohibit employers from mandating vaccinations as a condition of employment.
Mashel Law, LLC encourages all who have not yet obtained a COVID-19 vaccination to protect yourself, your family and loved ones, and your community by getting vaccinated. However, if your employer is requiring you to obtain a COVID-19 vaccination shot but you are unable to do so because of a preexisting medical condition or sincerely held religious belief, call the attorneys at Mashel Law, LLC for immediate help or fill out the contact form on this page. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.