Articles Posted by Insights

In June of 2021 the New York Legislature passed the HERO Act requiring employers to adopt an airborne infectious disease exposure presentation plan by no later than August 5, 2021.   Employers were free to use the State’s model plan entitled Airborne Infectious Disease Exposure Prevention Standards and Model Plans for Various Industries, found at, or develop their own plans that were compliant with HERO Act’s requirements. However, employers were not obligated to implement the infectious disease plan until such time that the Commissioner of Health officially designated an outbreak as a “highly contagious infectious disease.”

On September 6, 2021, the Commissioner of Health formally designated COVID-19 as a highly infectious disease, thus triggering the obligations of New York employers to implement the protocols of their respective infectious disease prevention plans, including:

  • Review and update the plan to incorporate any updated requirements

The aim of President Biden’s “Path Out of the Pandemic,” announced on September 9, 2021, is to increase the number of vaccinated workers across the country.  To that end, the plan includes several requirements that will affect more than 80 million private sector workers and most workers in the public sector.

Mandatory Vaccination or Weekly Testing for Large Employers of 100 or More.  Under the President’s plan, large employers must ensure workers are fully vaccinated or provide a negative COVID-19 test at least once each week.  In addition, large employers must provide workers with paid time off to get vaccinated or to recover from the effects of the vaccine. Upcoming regulations will likely address how the 100-employee threshold will be met, whether it will include part-time, temporary or remote workers.

When Must Employer Comply?  It is unclear when these mandatory requirements will take effect. According to the White House, the Occupational Safety and Health Administration (OSHA) will develop an Emergency Temporary Standard (ETS) “in the upcoming weeks” implementing the vaccine mandate and ongoing testing requirements. While some suggest that this process will take 30 to 60 days, prior ETSs issued by OSHA earlier this year to combat the pandemic took five months. In addition, employers can expect legal challenges to the authority of the federal government to impose such mandates.

Employers are faced with a variety of legal questions when determining whether to mandate COVID-19 vaccinations and other safety protocols in the workplace. These questions are further complicated by varying opinions on the safety of vaccines and whether such mandates impose upon the privacy rights of employees.  This article outlines an employer’s legal rights in light of those concerns.

COVID-19 Vaccinations Mandates and Exceptions

The Equal Employment Opportunity Commission (“EEOC”) has stated that employers are free to mandate vaccinations in the workplace and to require proof of vaccination status. However, there are two exceptions to this mandate.  First, the Americans with Disabilities Act (“ADA”) requires employers to provide “reasonable accommodations” for those objecting to the vaccine based on one’s medical condition.  Accommodations may include, but are not limited to, continued mask wearing and social distancing, a private office or workplace, remote working, or even a leave of absence. Employees claiming they have a medical condition that prevents them from getting vaccinated should be required to submit documentation from a treating physician substantiating the need for an exemption.

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At a meeting of the New Jersey Cannabis Regulatory Commission (the “CRC”) held on August 19, 2021, an initial set of regulations were adopted which will govern the recreational cannabis industry in New Jersey. These are not the full set of regulations that will be needed to govern the industry (e.g. the current regulations do not cover licensing requirements for wholesaler, distributor, or delivery licenses). However, the regulations do mark a major milestone in the path to a legal adult recreational cannabis industry in the State of New Jersey.

Among other things, the adoption of these regulations triggers a 180-day countdown to the day when adult recreational sales are to be permitted in New Jersey. That would be February 15, 2022, which now becomes the outside date for such sales. The date for businesses to first be permitted to apply for licenses in the cannabis industry, however, has not yet been determined. When the CRC decides that it is ready to accept license applications, a notice of that initial application date will be published. No applications will be permitted until at least 30 days after the publication date of that notice. The date for that publication is unknown at the present time. As CRC Chairperson Dianna Houenou stated at the August 19, 2021 meeting of the CRC, the commission will hold off on accepting license applications until it has the ability to “process applications effectively and efficiently”.

The new regulations provide that three types of cannabis businesses will be given priority in the review and approval of their license applications—effectively moving these applications to the “top of the pile” in the review process (jumping ahead of other, even earlier submitted, applications):

As the Delta variant of COVID-19 continues to spread, many businesses have begun to mandate that their employees get vaccinated as a condition of employment. While there are innumerable benefits to having a fully vaccinated workforce, not every employer may want to pursue such a heavy-handed approach. Alternatively, employers may consider offering non-vaccinated employees incentives to get vaccinated. 

The Equal Employment Opportunity Commission (EEOC) has approved the use of incentives to encourage vaccinations in the workplace. However, it has noted that vaccination incentives cannot be so substantial as to be deemed coercive. Permissible incentives generally range from extra paid days off to free beer or lottery tickets. When determining what incentives to offer, it is critical that employers keep in mind that anything over a de minimus type of incentive may risk being deemed coercive. It is also important to note that employers cannot offer incentives to employees to have their family members vaccinated, as this would lead to the employer’s receipt of genetic information in the form of family history thereby running afoul of the Genetic Information Nondiscrimination Act (GINA Act). 

We recommend consulting with legal counsel to determine which approach is best for your business.

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Since the onset of the pandemic in March 2020, employers have been grappling with an ever-changing landscape of federal and state mandates and recommendations. The situation is further complicated by varying opinions about how the pandemic should be handled as well as the efficacy or safety of the vaccines.  Employers are facing an unprecedented clash between ensuring their workplaces are as safe as reasonably possible while imposing mandates upon employees who feel that mandates have gone too far and infringe upon employee privacy rights and personal freedoms. This article seeks to dispel some of the confusion about the current state of employer efforts to combat the pandemic while balancing employee privacy concerns.

To Mask or Not to Mask, that is the Question.  With certain exception for high-risk areas such as healthcare settings and public transportation, all mandatory mask, social distancing and other safety measures imposed by Governor Murphy were lifted in early July 2021 for both vaccinated and unvaccinated individuals.  The CDC also lifted its mask recommendation for outdoor and indoor public spaces for all persons who were unvaccinated.

However, by mid-July the CDC and the Governor reversed course in response to the uptick in cases of the Delta variant. The CDC recommended that all individuals in counties with “substantial or high” transmission rate should mask up in indoor places, regardless of their vaccination status.  In late July Governor Murphy followed suit, “strongly recommending” that the CDC guidelines be followed in crowded indoor settings where the vaccination status of individuals is unknown or there is an immunocompromised person.

In early 2020, Governor Murphy signed a series of bills aimed at identifying and penalizing businesses for misclassification of employees as independent contractors.  On July 8, 2021, New Jersey enacted four additional laws to further its previous efforts to combat misclassification of workers.

A5890: Injunctions and Stop-Work Orders  

This law, effective immediately, allows the Commissioner of the Department of Labor and Workforce Development (“DOL”) to seek a superior court injunction to prevent ongoing violations of State wage, benefit, and tax laws stemming from employee misclassification.  Previously alleged violations were handled administratively before the Office of Administrative Law (“OAL”).  Under this new law, the Commissioner can bypass the OAL and go straight to court.  If the Commissioner prevails, all remedies are available to the victims of misclassification.   Additionally, the Court shall award reasonable attorney’s fees and litigation and investigation costs.  Determining whether to pursue an enforcement action is left to the “sole discretion” of the Commissioner.

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On June 24, 2021, the New Jersey General Assembly unanimously passed bipartisan legislation to limit liability for planned real estate developments due to the spread of COVID-19, should they decide to reopen amenities like pools and fitness centers, as long as sign requirements at the entrances to the common areas are observed.

“This is a win for those homeowners associations that chose to keep communal areas closed in 2020 due to liability concerns relating to Covid-19,” said Assemblyman Brian Bergen, R-Morris, a sponsor of the Assembly version of the bill.

“My bill will allow them to open those areas at their discretion while protecting them from lawsuits should any residents or guests be exposed to or come down with the disease,” Bergen said. “Condominium and townhome residents can get back into their shared pools and gyms.”

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As employers look to reopen their doors following the COVID-19 pandemic, many are faced with a variety of legal questions concerning the issuance of mandatory vaccinations and other workplace safety protocols.  To minimize liability and best address these legal challenges, it is critical that employers are aware of both their rights and obligations under state and federal law before bringing employees back into the workplace.

Requiring COVID-19 Vaccinations and Proof of Vaccinations

In the absence of any state law to the contrary, employers are free to mandate vaccinations in the workplace.  When making this decision, however, employers must first determine whether a mandated vaccine policy is necessary given the nature of their workplace.  For example, certain service industries (i.e. restaurants) may feel compelled to mandate vaccinations in order to appear safer and therefore more attractive to their public clientele.  Conversely, other industries may find that mandating vaccines may have a negative impact on employee morale and therefore decide to simply encourage their employees to vaccinate.  Employers must carefully engage in a cost-benefit analysis tailored to the nature of their specific business when deciding whether to impose a mandatory vaccine policy.

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Yesterday we issued a publication warning that Governor Murphy’s Executive Order 242, lifting the mask and social distancing mandates for workplaces effective May 28, 2021, was limited to businesses that open their doors to the general public.  Private businesses that do not open their indoor spaces to the public for the purpose of selling goods, attending activities, or providing services must continue to comply with the mandates.
Further Lifting of the Mask and Social Distancing Requirements for Employees: On the heels of that Executive Order, the Governor’s office issued Executive Order No. 243, which goes into effect on 6:00 a.m. on June 4, 2021. That order lifts the mask and social distancing requirements in private indoor workplaces for those employees who verify they have been “fully vaccinated” as defined by the CDC ( all vaccination shots completed no fewer than 14 days prior).  If the employer is unable to verify an employee’s vaccination status, it must require the employee to continue with the mask and social distancing requirements. The Order makes it clear that employers in workplaces not open to the public have the option to impose stricter requirements for mask-wearing and social distancing for employees but shall not restrict employees from wearing masks if they chose to do so.
Lifting of Requirements for Workplace Visitors: In addition, businesses not open to the general public are permitted to allow customers and visitors to enter the workplace without requiring a mask or social distancing, regardless of their vaccination status. As with employees, these businesses can impose stricter mask and social distancing requirements but may not restrict the wearing of masks by visitors.
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