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Can NJ Workers Who Won’t Get COVID Vaccinations Claim Discrimination?

Vaccinations Claim Discrimination
By Zhen Liu, Staff Writer

On June 22, Houston Methodist Hospital in Texas, one of the first health systems to require Coronavirus vaccinations, terminated or accepted the resignations of 153 workers, for failure to comply with the vaccine mandate. The hospital system announced on April 1 that staffers would need to be vaccinated to keep their jobs. While more than 380 colleges and universities and a few travel companies have imposed vaccine mandates recently, most other employers have held back, worried about the difficult politics surrounding the coronavirus vaccines and the untested legal issues involving vaccines cleared under the Food and Drug Administration’s emergency authority.

A growing number of health-care organizations have opted to impose vaccine mandates, though. New Jersey’s largest hospital group, RWJBarnabas Health, is requiring all employees at the supervisor level and higher to be fully vaccinated against COVID-19 no later than June 30. The company also expects to soon mandate the same for all employees. In a statement, the President and CEO says the 11-hospital system has “an obligation to do all we can to protect our patients and the communities we serve.” RWJBarnabas is the first hospital group to mandate vaccines for its employees, but also may be the first New Jersey company to impose the requirement.

As additional COVID-19 vaccines become available, and places of business begin to expand their in-office work force, New Jersey is permitting employers to require vaccination of employees before they can return to the workplace.

NJLAD Protections.

The New Jersey Department of Health (NJ DOH) has issued a guidance communicating that, under certain circumstances, employers may require their employees to obtain COVID-19 vaccinations as a condition of employment. New Jersey employers that mandate employee vaccinations must ensure that they comply with federal and state employment laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the New Jersey Law Against Discrimination (NJLAD), and the New Jersey Conscientious Employee Protection Act.

In accordance with such laws, the NJDOH specified that employers may not require employees to receive COVID-19 vaccinations under three scenarios:

  1. an employee whose medical condition prevents vaccination;
  2. an employee whose physician advises against vaccination while the employee is pregnant or breastfeeding; or
  3. an employee whose sincerely held religious beliefs prevent vaccination.

In such circumstances, NJLAD requires that the employers provide reasonable accommodations to applicable employees unless doing so would impose an undue hardship on the employer. A reasonable accommodation may include allowing the employee to work remotely, or to otherwise work in a manner that would reduce or eliminate the risk of harm to other employees or the public. Employers may also provide reasonable accommodations by supplying employees with personal protective equipment to mitigate the risk of COVID-19 transmission and exposure.

Employers generally may request medical documentation to confirm a disability or to confirm that an employee who requests a reasonable accommodation on the basis of pregnancy or breastfeeding was advised by their doctor to seek such accommodation. Employers must ensure that all information about an employee’s disability is kept confidential and must maintain all information about employee illness as a confidential medical record.

Under the NJLAD, however, if there is no reasonable accommodation that the employer can provide that would mitigate the risk of COVID-19 transmission to its employees and customers, then the employer can enforce its policy of excluding unvaccinated employees from the physical workplace, even if the employee are unvaccinated because of a disability, pregnancy, or breastfeeding, or a sincerely held religious belief. However, that does not mean that the employer can automatically discipline the employee if he or she cannot get vaccinated, as the employer may be precluded from doing so by other laws, regulations, or policies.

For employers with a unionized workforce, the applicable collective bargaining agreement already may vest the employer with the management right to unilaterally develop and implement a vaccine program.

What About Public Accommodations?

The EEOC and NJLAD guidance focus mainly on the employment relationship. Companies that provide services to the public, trade associations that hold conferences and other events, and venues that qualify as public accommodations are also confronting decisions about whether to require proof of vaccination before permitting non-employees to enter their premises or attend their in-person events.

If public accommodations follow an approach similar to that in the NJLAD guidance, they may consider adopting policies requiring proof of vaccination from attendees at in-person events or from customers who come on-site – however, in most cases, they would also need to provide comparable offerings in a virtual or no-contact setting to those who, due to a disability, cannot meet the vaccination requirement for in-person attendance.

Questions and Answers.

What are the NJLAD’s protections related to COVID-19 in places of public accommodation, including schools?

Under the NJLAD, a place of public accommodation cannot discriminate because of actual or perceived race, national origin, religion, disability, or other NJLAD-protected characteristic. The place of public accommodation also must take action to stop harassment based on these characteristics if they know or should have known about it, even if the harassment comes from another patient, customer, or student. These protections apply even if the conduct at issue stems from concerns related to COVID-19. So, for example, if a classmate repeatedly told one student that he must have (or must have had) COVID-19 because he is from India, the school could be liable if the parent reported the harassment and the school did not investigate or take action.

If an organization is a public accommodation, the only way an organization can limit an individual with a disability’s “full enjoyment” of services, would be if the individual “poses a direct threat to the health or safety of others that cannot be mitigated by appropriate modifications in the public accommodation’s policies or procedures, or by the provision of auxiliary aids.” Accordingly, if a customer is unvaccinated because of a disability, the organization would then need to work to provide the client with full and equal enjoyment of the service in another way, or risk a claim of violation of the law.

Is there any legal impediment against private entities requiring proof of vaccination?

There aren’t constitutional issues, because that only deals with the government. But a lot of laws prohibit private entities from discriminating against people-the Civil Rights Act, the Americans with Disability Act, etc. If somebody says, “I just don’t want to get the vaccine, you have to let me in,” that might be more difficult to prove a legal right to enter. If a private entity says, “This is for the safety of the students or the customers or the attendees,” that’s a strong justification for regulating who comes in.

While requiring proof of vaccination may be legal, businesses and employers should carefully evaluate potential legal consequences and practical considerations pertinent to their industry. Although the analysis is unique to industry and individual businesses, the legal protections varies. Employers should also ensure they have policies in place to keep any confidential medical records private and that any inquiry into sincerely held religious beliefs are lawful.

Staff Writer Zhen Liu is a graduate from Seton Hall Law School, where she was a member of the Asian Pacific American Lawyers Association. She specializes in Family Law and serves as research assistant to associate reporters of The American Law Institute. This will be her last blog and we wish her well in her future endeavors.

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