Several states are taking steps to forbid employers from requiring that workers receive COVID-19 vaccinations. Separately, I know of at least two pending lawsuits that employees have filed. I already blogged about one of them here. The other is pending in a federal court in California.
But it’s the California of the East a/k/a New Jersey that has taken a much different approach.
New Jersey has issued an FAQ, which includes, “Can my employer require me to get the COVID-19 vaccine in order to enter my workplace?”
Subject to certain exceptions, the answer is yes:
An employer can require that an employee receive the COVID-19 vaccine in order to return to the workplace, unless the employee cannot get the vaccine because of a disability, because their doctor has advised them not to get the vaccine while pregnant or breastfeeding, or because of a sincerely held religious belief, practice, or observance.
I’ve addressed the disability and religious exceptions, which also came up during Part I of The Employer Handbook Zoom Office Hours on Friday. You can view that here at The Employer Handbook YouTube Channel. (You can also check out Part II here.)
The pregnancy/breastfeeding accommodation is new. In contrast, the EEOC does address pregnancy in its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” but not as a protected class for vaccine accommodations. Although while pregnancy itself is not a disability, pregnant women can have pregnancy-related disabilities that may require accommodation.
But, even in New Jersey, any employer may elect to exclude unvaccinated employees from the workplace provided that there is no available reasonable accommodation that would mitigate the risk of COVID-19 transmission, including people who are unvaccinated because of a disability, pregnancy, or breastfeeding, or a sincerely held religious belief. In many instances, telework will be a reasonable accommodation. Facemasks and social distancing could also work at the office.
Ultimately, I suspect that much of this guidance won’t have any practical effect on most workplaces. The bulk of employers won’t require vaccinations but encourage or incentivize them instead.
Still, even with the NJ FAQ, I wouldn’t bet against a similar lawsuit filed locally to stop employers from mandating lawsuits.