By: Dan Sweetser
As many employers begin calling their employees back to the workplace, there are questions surrounding vaccination requirements. The New Jersey Department of Labor (NJDOL) declared that New Jersey employers can require employees to get the COVID-19 vaccine in order to work, unless the employee cannot get the vaccine because of (1) a disability, (2) their doctor has advised them not to get the vaccine while pregnant or breastfeeding, or (3) a sincerely held religious belief, practice, or observance. If an employee falls into any of these three categories, the employer must provide a reasonable accommodation from the employer’s mandatory vaccine policy, unless doing so would impose an undue burden on the employer’s business operations.
The NJDOL instructs that the safety of the employee, coworkers, clients and customers are factors to be considered by the employer in evaluating whether a potential accommodation would be reasonable. An employer must base its decisions regarding any potential safety hazard on objective, scientific evidence, including evidence reflected in policies and guidance from federal, state, and local authorities (including the CDC), and not on unfounded assumptions or stereotypes.
A reasonable accommodation may include allowing the employee to work remotely, or in some other manner that would reduce or eliminate the risk of harm to other employees or to the public. A reasonable accommodation may also include providing the employee with personal protective equipment that sufficiently mitigates the employee’s risk of COVID-19 transmission and exposure.
Under the New Jersey Law Against Discrimination (NJLAD), if there is no reasonable accommodation that can be provided to mitigate the risk of COVID-19 transmission to co-employees and customers, then the employer can legally enforce its policy of excluding unvaccinated employees from the physical workplace, even if the employee is unvaccinated because of a disability, pregnancy, or breastfeeding, or a sincerely held religious belief. In other words, the employee may be discharged from employment if no reasonable accommodation is possible.
Practical Tips for Employers:
- If you deem a vaccination policy necessary for your business, you or your attorney should prepare a clearly worded policy consistent with the law to inform your employees of the new policy and how it will be implemented. At a minimum, the policy should include the dates by which employees should be fully vaccinated, a process for providing proof of vaccination and a process by which requests for a reasonable accommodation will be reviewed — starting with written documentation in support of the employee’s request.
- For employees who request a reasonable accommodation, you must review such request objectively and judiciously, and grant the employee’s request if possible. You must fully explore all reasonable accommodation options with the employee before deciding against an accommodation.
- Where an accommodation is not possible, be respectful of and empathetic to the employee and provide the employee with a written explanation of the reason that a reasonable accommodation is not possible.
Practical Tips for Employees:
- Recognize that the law allows employers to require you to be vaccinated as a condition of employment unless you fall within one of the three exceptions referenced above. To this end, recognize that you can lose your job under the law if you refuse to comply with your employer’s vaccination policy and do not qualify as an exception.
- If you require a reasonable accommodation, obtain the necessary documentation from your medical provider or other proper resource in support of your request and present it to your employer.
- If your employer has difficulty reasonably accommodating your request, talk to your employer and exchange information in a collaborative effort to solve the problem.
Dan Sweetser is a partner and chairs the firm’s Employment Law Department. Dan has been practicing for 30 years and handles Employment Law and other Business Litigation Cases in the State and Federal Courts of New Jersey and Pennsylvania. To contact Dan please email him directly at email@example.com or call (609) 275-0400.