Policy

On October 5, 2021, Governor Phil Murphy signed a new law that greatly expands the protections afforded to older workers under the New Jersey Law Against Discrimination (“NJLAD”) These Amendments took effect immediately, meaning older workers are now already afforded these enhanced protections against workplace discrimination. As a result, employers today must promptly reevaluate both their hiring practices and any policies requiring that older workers retire when they reach a prescribed age.

The scope of the recent amendments is broad, and change the protections already afforded to older employees under the NJLAD in the following significant ways:

• Repeals Section 11 of the NJLAD which allowed employers to refuse to accept for employment or to promote individuals over 70 years old. The elimination of this provision broadens employment opportunities for older individuals over 70 years of age, and as a practical matter, means that age can no longer be used as a factor in the hiring or promotion process.
• Amends Section 5 of the NJLAD that limited the remedies applicable when an employee claimed that he/she was unlawfully forced to retire. Before this law, those employees were required to file a complaint with the Attorney General and relief was limited to reinstatement with back pay and interest. The revised provision now makes available all of the remedies provided by “any applicable law,” subjecting employers who engage in such age discrimination to greater risk of legal exposure through these enhanced remedies.
• Eliminates the statutory provision that permitted government employers to force mandatory retirement at a certain age if the employer could show “that the retirement age bears a manifest relationship to the employment in question.” Now, government employers must continue to provide employment opportunities to older workers as long as the employees can perform their official duties and responsibilities.
• Repeals Section 4 of the NJLAD which previously stated that “an employee who has attained 70 years of age who is serving under a contract of tenure or similar arrangement providing for tenure at a public or private institution of higher education may, at the option of the institution, be required to retire.” Under this amendment, mandatory retirement policies based on age at higher education institutions are now no longer permitted.

One question that was prominent upon the passage of these amendments   was how this new law would apply to well established mandatory retirement requirements that applied to certain categories of public employees. Significantly, the new law does not change the mandatory requirement age of 70 for State court judges at any level or for police and fire departments.

In light of these recent changes, employers should review all relevant employment policies to ensure that those policies remain consistent with these new legal requirements and do not run afoul of the added protections for older employees under the newly revised NJLAD.

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

In my practice, I am already receiving multiple questions about President Biden’s September 9, 2021 directive requiring that companies with 100 or more employees mandate vaccinations for all work staff or alternatively conduct weekly COVID-19 testing.  Many of my employer clients want to know more about these requirements, in particular, whether they should already be mandating vaccinations or conducting employee testing pursuant to the President’s directive. The answer that I have given to my clients so far is no, nothing is yet required, because we still have no idea what the exact details of those vaccination/testing requirements will be.

Biden’s directive will not become effective until the Occupational Safety and Health Administration (“OSHA”), through its emergency rulemaking authority, issues an actual rule(s) that outlines the scope of the expected federal mandate and provides greater details on what will be required of employers with regards to both vaccinations and testing. Already, there have been murmurs of possible legal challenges to whatever rule is issued.

Through its emergency rulemaking powers, OSHA may issue rules and regulations to eradicate workplace safety risks.  The expectation is that OSHA will ultimately ground its rulemaking here on this issue on the claim that unvaccinated workers pose safety risks to others around them in the workplace. As followers of this blog know, vaccination mandates by employers have long been recognized as a legally valid exercise of employer authority, subject of course to possible health and religious related exemptions. We expect that similar exception requirements will be recognized under whatever emergency rule OSHA issues. We also expect that more details will be supplied about the scope of any required testing requirements once we have OSHA’s rule. While the legality of vaccination mandates by employers is well settled, legal experts differ as to whether OSHA, through its emergency powers, has the legal authority to impose vaccination mandates on employees through their employers. This difference of opinion has generated much of the discussions about the possibility of legal challenges to stop the enforcement of any vaccination rule issued by OSHA.

So, my best advice at this time is to stay tuned. Once we get the final emergency rule(s) from OSHA, there will be greater clarity on both the exact requirements the federal agency is imposing, as well as when employers will be expected to comply, assuming, of course, that no anticipated legal challenges succeed in disrupting or delaying implementation and enforcement.

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

With the Pfizer COVID-19 Vaccine recently receiving full Food and Drug Administration (“FDA”) approval, the question on many employer’s minds is whether legally employers can now mandate employee vaccinations for COVID-19 as a condition of employment.  Even before this recent approval of the Pfizer Vaccine, many employers had already decided to require vaccinations (or alternatively frequent employee COVID-19 testing) even when vaccinations were only approved for emergency use. The emergency use status of the available vaccines made some employers think twice about issuing such a mandate, but with the approval of the Pfizer Vaccine for full use, this likely will now be a game changer and more employers will seek to issue such mandates. In just the last few days, we have already seen some high profile companies implementing mandatory vaccination programs, i.e. Disney, as well as state and local governments, including here in New Jersey.

As I indicated in earlier articles presented here in this blog, vaccine mandates have long been viewed as legal, provided employers made possible exceptions for employees with disabilities that precluded vaccination or for those with religious objections to such vaccinations. COVID-19 vaccination mandates have also recently withstood legal challenges as well in the last few months even with the vaccines having only emergency use approval.  Thus, so long as employers provide the type of exemptions noted above, an employer today may implement a mandatory COVID-19 vaccination program for employees.

If you plan to implement such a mandatory vaccination program, here are some important considerations that should be followed.

First, you should clearly advise employees of the nature of the program and outline the specific consequences that could follow for those who refuse to meet those requirements. The policy should also include language that indicates that exceptions from the requirement will be considered for the foregoing health and religious reasons. Importantly, you need to train your employees on how to handle such exemption requests, and what is legally (or not legally) allowed to be sought during the necessary interactive process while considering the exemption request. Beware in particular of religion-based exemption requests.  For example, there are various restrictions on when you as an employer should ask for information verifying the bona-fide nature of the posited religious belief.  Also, be aware that thanks to the internet today, employees for a fee can actually obtain certifications from various “ministry” religious organization websites that are supplying documentary support for vaccination exception requests (and even mask exemptions on religion grounds). I have seen some of those certifications already used with several of my clients to support a religious exemption to COVID-19 safety protocols, so make sure you proceed with caution anytime you are presented with a religious-based COVID-19 vaccination exemption request. Finally, whether you grant or deny a requested exemption, document the process and the reasons why the particular decision was made.

As more and more employers decide to implement vaccine mandates, we expect to see additional legal challenges filed. We will continue to keep you updated on all possible developments affecting this issue.

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

With more and more businesses taking the first steps to reopen as the pandemic begins to wane, I have been getting this question from more and more of my clients: Can we ask our employees to provide proof that they have been vaccinated against COVID-19?  The answer is that an employer may indeed ask that question and make that inquiry, but employers must be careful regarding how far they probe into that question.

The Equal Employment Opportunity Commission (“EEOC”) has taken the position that asking someone whether they are fully vaccinated does not result in the disclosure of an employee’s medical information, so asking such a question is fair game for an employer. In the EEOC’s view, just asking the question is not a medical exam because there could be many reasons (other than, for example, employee health issues) that may be why an employee has not been vaccinated. Where you as an employer will need to be cautious is when you start asking questions beyond the vaccination proof issue, such as why the employee is not vaccinated.  There you might be treading too close to asking improper questions about an employee’s medical status. If you find yourself in that territory, you will have to evaluate the employee’s response within the framework of the Americans with Disabilities Act’s (ADA) (or Title VII’s, if the employee’s response implicates religious beliefs) requirement to justify proof of vaccination being “job-related and consistent with business necessity.” That can be a difficult standard to meet, so employers who wish to venture into this area would be wise to (1) strictly limit their inquiry exclusively to whether or not the employee is fully vaccinated; and (2) requesting proof of that vaccination, say asking for a copy of the vaccination card itself. That way you avoid getting into these medical issue topics, and you the employer would then keep any proof information you obtained from the employee confidential like you would with any other private information received on an employee.

As things continue to evolve, we expect to receive more guidance from the EEOC on what employers can do as part of their reopening efforts, and as that happens, we will provide further legal updates to assist employers in those reopening efforts.

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

With the increased availability of COVID-19 vaccines in New Jersey, the state Department of Health (“DOH”) recently issued Guidelines allowing employers to mandate COVID-19 vaccinations for its employees. Nonetheless, even in the face of such state Guidelines, employers should still proceed cautiously in implementing such vaccine mandates for employees given the mere emergency use authorization granted to the currently available COVID-19 vaccines under federal law.

In announcing its Guidelines allowing for mandatory vaccinations, the state DOH adopted in large part the Guidelines previously outlined by the Equal Employment Opportunity Commission (“EEOC”) regarding COVID-19 employer vaccination mandates. The state DOH also announced three exceptions to this vaccine mandate rule:

1. The employee has a disability that would prevent them from getting the vaccine.
2. The employee’s doctor advised them not to get the vaccine while pregnant or breastfeeding
3. The employee has sincerely held religious beliefs, practices or observances that would prevent them from being inoculated.

If the employee can prove such exceptions, the employer must provide a reasonable accommodation, per the state DOH’s Guidelines. Moreover, on the other hand, employers can avoid providing an accommodation to an employee where doing so imposes an undue burden on the employer’s operations.

Some other important aspects of the state DOL Guidelines:

1. Employers generally may request medical documentation to confirm a disability.
2. Employers may request medical documentation to confirm that an employee who is pregnant or breastfeeding was advised by their doctor to seek such accommodation.
3. Employers must ensure that all information about an employee’s disability is kept confidential.
4. If a sincerely held religious belief, practice, or observance precludes an employee from getting a COVID-19 vaccine, however, an employer generally may not question the employee’s sincerity. The exception to this requirement is if the employer has an “objective basis” of fact for questioning either the religious nature or the sincerity of a particular belief, practice, or observance. In that case, the employer may make a limited inquiry into the facts and circumstances supporting the employee’s request.
5. Safety also can be considered in evaluating whether a potential accommodation would be reasonable. In this regard, an employer must base its decisions regarding any potential safety hazard on objective, scientific evidence and not on unfounded assumptions or stereotypes.

Where an employer must provide a reasonable accommodation, such a measure may include:

1. Allowing the employee to continue to work remotely, or otherwise to work in a manner that would reduce or eliminate the risk of harm to other employees or to the public.
2. Providing the employee with personal protective equipment that sufficiently mitigates the employee’s risk of COVID-19 transmission and exposure.

Whether these Guidelines will result in an increased number of employer mandated vaccination programs is difficult to predict. So far, most employers have decided against mandating employee vaccinations because the vaccines have only been approved for emergency use and are not fully authorized and licensed vaccines.

Even with this New Jersey Guidelines directive, the Federal Food and Drug Law’s requirement that no one can be forced to take a vaccine that is only approved for emergency use still exists as a limitation and raises a possible legal risk for employers. Granted, its application in these situations raise novel issues. And, we do not have a definitive answer in the context of emergency use vaccines. Nevertheless, it presents enough of a concern that employers should proceed cautiously in mandating employee vaccines even with the recent state DOH Guidelines.

In that regard, here is one very real and significant legal risk for employers in New Jersey. Let’s say you as an employer want to mandate the vaccination, and one of your employees refuses to take it and they do not fall into one of the stated exceptions. Now, let’s also assume that you as the employer plan to take some type of adverse employment action against the employee-maybe you decide to fire them or put them on a forced unpaid leave of absence. That employee could potentially bring suit and claim that the refusal to get vaccinated constituted a form of whistleblowing and violates the New Jersey CEPA law, with the public policy cited to support the claim being the federal food and drug law. That is one risk that the employer faces in mandating COVID vaccinations when the vaccine is still authorized just for emergency use. This is an important reason why most employers have opted instead to recommend vaccination, with many also offering incentives to promote greater employee response. This later way of obtaining the wanted result of greater employee vaccinations in the workplace is the far safer approach to this issue rather than employer mandates.

No doubt, we can expect this situation on employee vaccinations to continue to evolve, and employers will likely receive further federal and state guidance on how best to proceed as the desire to return to some normalcy in the workplace continues to develop.

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

By: Lara M. Ruggerio, Esq.
Editor: Ralph R. Smith, 3rd, Esq.

On October 28, 2020, Governor Murphy signed Executive Order 192, requiring employers to take certain precautions and measures to prevent the further spread of COVID-19 and safeguard employees in the workplace. According to the Executive Order, the requirements outlined therein are intended to provide a basic framework now absent at the federal government level for affording greater protections to employees against COVID-19.  Effective 6:00am on November 5, 2020, employers who permit or require any or all of their workforce to be physically present at a worksite will be required to follow specifically enumerated health and safety protocols to protect their employees. As expressly outlined in the Executive Order, employers must:

• Facilitate and maintain social distancing of at least six feet while employees and visitors are at the worksite;
• Require employees and visitors to wear masks at all times (with very limited exceptions for such things as health limitations);
• Provide sanitation and basic safety supplies to employees and visitors at no cost, including masks and gloves;
• Confirm that employees practice diligent hand washing and be given sufficient break time for same;
• Regularly clean and disinfect high-touch areas (e.g. doorknobs) in accordance with Department of Health and CDC guidelines;
• Conduct daily healthy checks consistent with CDC guidelines prior to each shift by utilizing certain methods proposed in the Executive Order itself, such as, for example, daily temperature screens and/or requiring employees to perform self-health checks for COVID-19 prior to arriving for work;
• Send sick employees home from the workplace and urge those who are sick to not to come to work;
• Follow the requirements of all federal and state applicable leave laws; and
• Notify employees of any known COVID-19 exposure in the workplace consistent with legally mandated confidentiality and privacy rules.

While a number of employers have already adopted over the last few months many of the now mandated safety protocols, Executive Order 192 certainly makes clear that the State will prioritize the health and safety of employees in the workplace over any inconvenience that these requirements may impose on employers. As outlined in the Executive Order, limited exceptions exist for first responders and emergency personnel.

Finally, along with expressly establishing the foregoing requirements, Executive Order 192 further directs both the Departments of Health and Labor to establish reporting procedures so that employers who are not following the required rules can be investigated and disciplined for non-compliance. This means that all employers must carefully evaluate how this Executive Order and the protocols mandated therein are to be implemented if they have not already established such safety protocols in your place of business.

In this space, I have written a couple articles on the need for employers to be aware of accommodation obligations under federal and state disability laws for those employees who are high risk for either COVID-19 exposure or more serious health problems from COVID-19.  I want to focus today on a different aspect of the accommodation duty — the need to accommodate the possible long term health problems flowing from recovery from COVID-19 themselves.

For many persons who survive their bout with COVID-19, long term heath consequences could continue for some time after COVID-19 no longer provides a risk of death or contagion to others. Some have continuing respiratory problems. Others continue to be lethargic for weeks after receiving a negative COVID-19 test. Still others experience long and short term cognitive issues. While COVID-19 may have left their bodies, new health problems exist, and these medical issues themselves will likely create possible accommodation requirements for employers because those issues would most likely qualify as a legal disability.

Employers need to be cognizant of such accommodation duties, and should approach them in the same fashion as they would any other accommodation request for a particular health ailment. Remember to follow the guidance provided previously in past articles about the importance of the interactive process in exploring possible accommodations and gaining needed medical information from the employee to help shape that dialogue and craft a potential accommodation, or alternatively, a defense to that request if no accommodation could work for the employer. Failing to do so will no doubt generate unwanted legal headaches for the employer. Thus, employers should not ignore this new health phenomenon.

So, remember, even when COVID-19 itself seems to have been beaten by the employee, its possible long term exposure effects on an employee may remain and could require some form of workplace accommodation.

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

In this current age of COVID-19, employers are seeing more and more requests from employees seeking a workplace reasonable accommodation. Some of these requests emanate from the employee’s own health condition that increases risks for COVID-19 complications. On the other hand, some employees are seeking to avoid coming into work because close family members have health conditions that make them more susceptible to COVID-19. So, how should employers respond to such requests?

As most employers know, possible accommodation duties flow from both federal and state anti-disability discrimination laws. For example, the Americans with Disabilities Act (“ADA”) requires that accommodations be made to assist a disabled employee in performing the essential functions of an employee’s job position. Here, in New Jersey, the state’s Law Against Discrimination (“LAD”) also imposes a similar duty.

In facing the accommodation requests of the kind referenced above, the first thing that I counsel employer clients to do is confirm that the employee indeed has a disability that may need to be accommodated. In today’s COVID-19 world, we are seeing more and more employees seeking an accommodation of working virtual from home because of concerns about vulnerable family members with whom they live. Since the employee is not asking for an accommodation for his/her own medical condition, neither the ADA nor the LAD requires that the employer accommodate the request. This does not mean that the employer cannot work with the employee to address such concerns-what it does mean is that legally the employee has no right to demand such an accommodation.

If the employee is conversely seeking an accommodation for his or her own medical condition, the employer is obligated to explore the possibility of an accommodation by engaging in the interactive process of examining possible ways of addressing the request.  This interactive back and forth includes the right on the employer’s part to obtain medical information to substantiate the request for accommodation. For employees who have a greater vulnerability of COVID-19 health risks, several of my clients are also seeing a higher volume of requests to work from home. Many of these clients are concerned about providing such an accommodation because it gives rise to possible burdens on staffing and the ability to provide services to clients.  As part of any analysis of such a request, my recommendation is always to scrutinize closely the medical reason for the request, and obtain detailed information from the medical provider about whether other non-work restrictions have been imposed. For example, has the doctor told the employee that he/she should not be leaving the home for any reasons or placed any similar type of stay at home restrictions on the employee. I also urge employers to alert the employee’s doctor to the steps taken in the workplace to protect employees from COVID-19 exposure so the physician can assess risks in light of the actual workplace to be encountered by the patient employee. Using such an exacting approach will better allow the employer to ferret out legitimate accommodation needs from those which arise from general fears of possible workplace COVID-19 exposure that ordinarily are not a sufficient legal reason for an accommodation.

The interactive process is a critical aspect of handling all workplace accommodation requests and should not be ignored because of the possible abuse of accommodation requests by employees fearing COVID-19 exposure. Even in situations where ultimately the employer may believe that it will cause an undue hardship to accommodate the employee, the interactive process must still be pursued before ultimately denying the accommodation request due to an undue hardship. In my experience, this is where employers get themselves into the most trouble. In this COVID-19 world, it is tempting to just ignore this step in the process and deny a suspicious accommodation request outright, but doing so is fraught with peril.

So, by following the foregoing steps, employers will better handle accommodation requests in the age of COVID-19 and minimize potential risks of liability claims hurting your business.

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.