On March 19, 2021, the New Jersey Department of Health (DOH) issued guidance for employers that want to require employees to receive the COVID-19 vaccine before returning to the workplace. In its guidance on the issue, the DOH explained that an employer can issue such a mandate, however, it also laid out exceptions to this rule.
An employer must provide a reasonable accommodation from their mandatory vaccine policy if an employee: 1) has a disability that precludes them from getting a COVID-19 vaccine; 2) has been specifically advised by their doctor not to get the COVID-19 vaccine while pregnant or breastfeeding; or 3) has a sincerely held religious belief, practice or observance that precludes them from getting a COVID-19 vaccine. The DOH directs that no such accommodations are required, however, if providing same would impose an undue burden on the employer’s operations.
In determining whether or not an accommodation is reasonable, the DOH notes that the safety of all employees, clients and customers will be the focal consideration. If there is no reasonable accommodation that an employer can provide, then an employer can enforce its policy of excluding unvaccinated employees from the physical workplace, even if employees are unvaccinated because of the provided exceptions to the rule. However, an employer cannot automatically discipline an employee if he/she cannot get vaccinated, as the employer may be precluded from doing so by other law, regulations or policies.
Employers are permitted to request relevant documentation to confirm an employee’s reasons for not receiving a vaccination. Employers generally may request medical documentation to confirm a disability, or to confirm a doctor advised against vaccination on the basis of pregnancy or breastfeeding. All information about an employee's disability or illness must be kept confidential.
If a sincerely held religious belief, practice or observance precludes an employee from getting a COVID-19 vaccine, an employer generally may not question the sincerity of that employee's religious beliefs, practices or observance, unless the employer has 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.
The DOH’s guidance must be evaluated in conjunction with the guidance issued in December 2020 by the federal Equal Employment Opportunity Commission regarding an employer’s ability to mandate a COVID vaccination as discussed in our prior alert.
Given the complexities of these issues, we urge employers to consult with their employment law counsel.