Per NJ Executive Order No. 252  “all workers in certain state and private health care facilities and high-risk congregate settings will be required to be fully vaccinated against COVID-19 or be subject to COVID-19 testing at minimum one to two times per week. . . . Health care facilities and other settings covered by the requirement will have until September 7, 2021 for all employees to come into full compliance with the vaccine mandate.”  UPDATED BY EO 283 (see below)

NJ Executive Order No. 253 requires "all preschool to Grade 12 school personnel to be fully vaccinated against COVID-19 by October 18, 2021 or be subject to COVID-19 testing at minimum one to two times per week." The order covers "[c]ontractors, providers, and any other individuals performing work in preschool to Grade 12 settings whose job duties require them to make regular visits to such covered settings, including volunteers."

NJ Executive Order No. 264 requires (among other things) all child care center personnel to be fully vaccinated against COVID-19 by November 1, 2021 or be subject to COVID-19 testing one to two times per week. 

NJ Executive Order No. 271 “requires new and potential state contractors to demonstrate that all of their employees who enter, work at, or provide services in any state agency location are fully vaccinated or otherwise undergo weekly testing.” The order took effect October 20, 2021.

On January 11, 2022, the NJ governor issued Executive Order No. 281 which keeps the above vaccination-related orders in full effect.

NJ Executive Order No. 283 requires certain workers in health care settings and high-risk congregate settings to get vaccinated, with no test-out option. The order also requires boosters for eligible workers. 

NJ Executive Orders can be found HERE. For more information, click Where is vaccination or testing required for workers in NJ?

Reasonable Accommodations (originally posted Dec 2020, updated through Februaru 8, 2022)

Q: Can NJ private employers require their employees to get vaccinated for COVID-19?

A: Recent developments make it more likely that employer mandated COVID-19 vaccination are permissible. Still, the issue is complex. Employers should tread carefully when considering a mandated vaccination policy and should seek the advice of counsel.

In 2020, NJ passed a law mandating that hospitals, nursing homes, and home health care agencies must require their employees to take the influenza vaccine. This law applies to employees with and without direct patient contact. Given the severity of COVID-19, its high contagion and mortality rates, and its effect on the economy, together with the NJ legislature’s willingness to adopt a somewhat broad approach to influenza vaccination, many believed at that time (2020) that NJ courts were likely to find employer mandated COVID-19 vaccinations permissible, so long as those mandates comply with other federal and state employment laws.

In late 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance as to employer mandated vaccines (there have been subsequent updates). In Spring 2021, the EEOC issued a press release declaring 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…”  New Jersey also issued guidelines, largely adopting the EEOC's guidance, that employers may require their employees to obtain COVID-19 vaccinations as a condition of employment as long as they ensure compliance with federal laws and the NJ Law Against Discrimination and the NJ Conscientious Employee Protection Act.

For the EEOC guidance, click here - Section K and Section L.

To read NJ FAQs issued by the NJ Department of Labor, click here; for FAQs by NJ Division on Civil Rights, click here (and scroll to #14,15, and 16).

The EEOC describes a permissible basis for employers to require vaccination under the Americans With Disabilities Act (ADA) when an employee poses a “direct threat” to themselves or others by their physical presence in the workplace without being immunized.  If employees would pose “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation”, vaccination can be required. If employees are capable of fully performing their current job duties remotely, it does not appear that the employer can require employee vaccination. 

EEOC guidance provides that employers that require the COVID-19 vaccination must consider reasonable accommodations for employees with disabilities and for employees who are unable to be vaccinated for religious reasons. An employee could be entitled to an exemption from a mandatory vaccination under the ADA if the employee has a disability that prevents her from taking the vaccine. This exemption would be a reasonable accommodation that the employer would be required to grant unless it would result in undue hardship (significant difficulty or expense) to the employer. 

Additionally, under Title VII, once an employer receives notice that an employee’s sincerely held religious belief or observance prevents the employee from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship to the employer. Undue hardship under Title VII is a lower standard than under the ADA - religious accommodation requests need not be granted if they result in more than a de minimis cost to the operation of the employer’s business.

If no reasonable accommodation is possible and the employee is unable to be vaccinated, the EEOC states that the employer may “exclude” the worker from the workplace. This does not necessarily mean that the employer can terminate the worker.

Similar to EEOC guidance, NJ’s guidance makes clear that NJ employers may mandate that their employees be vaccinated against COVID-19 as long as the employer engages in an interactive process with employees to determine whether they may be exempt from the requirement as a result of a disability or a sincerely held religious belief, practice, or observance.  The NJ guidance adds a specific ground for an exemption if an employee’s “doctor has advised them not to get the vaccine while pregnant or breastfeeding.”

In addition to the ADA and Title VII, as well as similar state laws, the Occupational Safety and Health Act of 1970 (OSHA) provides that an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (like a serious reaction to the vaccine) may be protected.

Another area to consider is compliance with the National Labor Relations Act (NLRA). It is likely that employers with labor unions cannot unilaterally implement a mandated vaccination program without first bargaining with their unions. And, if groups of employees (unionized or non-union) band together and refuse to be vaccinated, this may constitute protected concerted activity under federal as well as state or local laws. There are also state laws that might provide protection to employees who protest mandatory vaccinations, including state “lawful off-duty activities” statutes (NY has such a law), which prohibit employers from terminating employees for engaging in lawful activities outside of their workplaces.

The complexities presented by these issues cannot be taken lightly. Employers considering mandated COVID-19 vaccination programs must proceed cautiously. 

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