Labor & Employment Insights — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

What Employers Need to Know About Vaccination Mandates and Incentive Programs

Published on: September 9, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

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.

Thinking About How to Maximize the Number of Vaccinated Employees in Your Office?

Published on: August 12, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

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.

Confusion in the Workplace Over Masks, Vaccine Mandates and Medical and Religious Exemptions to Vaccination

Published on: August 10, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

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.

New Jersey Cracks Down Further on Employee Misclassification

Published on: July 19, 2021 | by Lisa Gingeleskie

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.

Workplace Reopening After the Pandemic: What Employers Need to Know

Published on: June 15, 2021 | by Lisa Gingeleskie

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.

Governor Murphy Issues Yet Another Executive Order Rescinding Mask Restrictions in Private Workplaces and The Requirement to Accommodate Remote Working on June 4, 2021

Published on: May 27, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

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.

New Jersey’s Lifting of Mask Mandates DOES NOT Apply to Workplaces Not Open to The Public

Published on: May 26, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Many across the State are celebrating Governor Murphy’s Executive Order (EO) No. 242 lifting the mask and social distancing mandates for businesses and workplaces put in place by EO 192 at the outset of the COVID-19 pandemic. Specifically, EO 242 states that individuals in “indoor public spaces” are no longer required to comply with these mandates regardless of their vaccination status. Unvaccinated individuals “should” continue to wear mask in indoor public spaces but are not required to do so. EO 242 includes limited exceptions for childcare centers, youth summer camps, schools , health facilities and other facilities.

However, for those business that do not qualify as “indoor public places” the mask and social distancing mandates imposed by EO 192 remain in effect. EO 242 expressly states that “indoor public spaces” do not include indoor workplaces that do not open their indoor spaces to the public for the purpose of selling goods, attending activities, or providing services. According to EO 242, individuals in these indoor workplaces that are not open to the general public must continue to wear face coverings, subject only to the previously recognized exceptions, i.e., when the employee is at distances workstations or offices, and continue six feet social distancing to the maximum extent possible.

While there has been significant media coverage about the Governor’s lifting of restrictions, very few outlets have reported on the continuing requirement to observe COVID-19 protocols in private workplaces. Intuitively, these private places may be safer than those workplaces that invite members of the general public into their premises, but until further relief comes from the Governor’s Office, these requirements remain in effect.

Mask Mandates Are Falling – What Are Employers To Do?

Published on: May 19, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

On May 13, 2021 the CDC unexpectedly recommended that, with limited exceptions, fully vaccinated individuals can resume all indoor and outdoor activities without wearing masks or social distancing, except where required by law or workplace guidance. Individuals are deemed fully vaccinated 2 weeks after their final dose of the vaccine.

Under the new guidance, vaccinated individuals can resume pre-pandemic activities even if other individuals in the workplace are not fully vaccinated. In addition, vaccinated individuals are no longer required to undergo COVID-testing or quarantine after travel within the United States.

Not so fast: The collective cheers heard in offices last Thursday afternoon following the CDC’s announcement were short-lived for some jurisdictions that were following the CDC guidance. New York, Illinois and Massachusetts are among the states that have announced that they have or will imminently lift their states’ mask and social distancing mandates for vaccinated individuals. California has announced that it will keep the mandates in place for indoor settings outside the home until June 15^th. New Jersey’s Governor Murphy is taking a more cautious approach, stating that all workplace requirements of EO 192 (mandatory masks, social distancing, daily health screenings, sanitation of work areas) remain in effect and he has not announced any timeline for the lifting of restrictions.

Zero Tolerance Policy? Not So Fast. Proposed Cannabis bill offers Clarification and Possible Relief to Some Employers.

Published on: March 18, 2021 | by Elizabeth Engert Manzo

After much anticipation, New Jersey’s Governor Murphy signed the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” into law on February 22, 2021. While this law made adult use recreational cannabis legal, the extensive law, together with a few “clean up bills,” did a whole lot more than legalization. In hundreds of pages, this law created the broad framework for the development and regulation of the entire cannabis industry including licensing, manufacture, distribution, taxation, enforcement, as well as criminal and social justice reforms for the possession and use of cannabis. It is therefore not surprising that some issues of particular importance to employers, such as drug testing and carve-outs for certain industries, are still hazy.

Importantly, while some provisions of the law became effective immediately, the provisions governing employment and those “activities associated with the personal use of cannabis,” are not operative until the newly appointed five member Cannabis Regulatory Commission adopts initial rules and regulations. These regulations, which will interpret and instruct how the law will be implemented, are required sometime within 180 days of the law’s adoption, or by mid-August 2021.

How does recreational marijuana impact Zero Tolerance Marijuana Policies?

OSHA Issues New Guidance on Mitigating COVID-19 in the Workplace

Published on: February 12, 2021 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

On the heels of President Biden’s Executive Order on Protecting Worker Health and Safety directing the Department of Labor and the Occupational Safety and Health Administration (“OSHA”) to issue “science-based guidance” to protect workers from COVID-19 exposure, the agency announced its updated guidance entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”). Along with providing information for employees on protecting against COIVD-19 infection, the Guidance provides additional details on key measures employers should take to limit the spread of the virus in the workplace.

Implementation of a COVID-19 protection program. Although most employers have already implemented safety protocols in response to prior CDC guidance on reopening the workplace, the new Guidance provides greater details on recommended COVID-19 prevention programs which should include the following elements:

Assignment of a workplace coordinator responsible for COVID-19 issues on the employer’s behalf.