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Employment Law Notebook

NJ Healthcare Employees Can No Longer Test Out of Getting COVID-19 Vaccine

Five months after requiring New Jersey healthcare employees to get vaccinated with the COVID-19 vaccine or undergo weekly COVID-19 testing, Governor Phil Murphy has slashed the testing option for many healthcare workers.  Executive Order 283 compels certain healthcare employers in the state to require employees and contractors to be fully vaccinated and boosted by certain deadlines or face discipline, which could include termination.  Deadlines for compliance vary depending on whether a healthcare entity receives Medicare or Medicaid funding and is covered by the COVID-19 Health Care Staff Vaccination Rule issued by the Centers for Medicare and Medicaid Services. (“CMS”).

The state’s vaccine mandate applies to those providing patient care as well as those providing operational, custodial or administrative services.  Employees working for healthcare employers covered by the CMS rule must get their first COVID-19 shot by January 27, and be fully vaccinated and boosted by February 28, or boosted within three weeks of becoming eligible for a booster shot, whichever occurs later. For the list of employers covered by the CMS rule and the requirements, see my blog here.  Employees working for covered healthcare settings and covered high risk settlings that are not covered by the CMS rule must get their first COVID-19 shot by February 16, 2022, and be fully vaccinated and boosted by March 30, or boosted within three weeks of becoming eligible for a booster shot, whichever occurs later.  

Covered healthcare settings as defined in EO 283 include the following facilities operating in the state:  long-term care facilities; intermediate care facilities; licensed home health agencies and registered health care service firms operating in the state; acute, pediatric, inpatient rehabilitation, and psychiatric hospitals, including specialty hospitals, and ambulatory surgical centers; intermediate care facilities; residential detox, short-term and long-term residential substance abuse disorder treatment facilities; clinic-based settings like ambulatory care, urgent care clinics, dialysis centers, federally qualified health care centers, family planning sites, and Opioid Treatment Programs; community-based  healthcare settings, including Program of All-Inclusive Care for the elderly, pediatric and adult medical day care programs.  Covered High-risk settings as defined in EO 283 include the following facilities: state and county correctional facilities; secure care facilities and residential community homes operated by the Juvenile Justice Commission; licensed community residences and certified day programs for individuals with intellectual and developmental disabilities and traumatic brain injury; licensed community resident for adults with mental illness; and group homes and psychiatric community homes licensed by the state’s Department of Children and Families.

The booster and discipline components in the EO are stricter requirements than those imposed by CMS.  The discipline requirement mandates covered employers to include a disciplinary process for worker compliance, which may include termination of employment. Employees at all facilities must also continue to get tested once or twice a week for COVID-19 until they submit proof to their employers that they are fully vaccinated and boosted. Additionally, the state has also given affected employers the option of imposing stricter requirements.  

Healthcare and high-risk settings covered by EO 183 may find themselves bombarded with a significant number of requests for exemptions to the vaccine mandate.  EO 283 permits covered entities to evaluate and grant employee requests for medical and religious exemptions if they are legally required.  If exemptions are granted, such employers must require unvaccinated employees to continue weekly or twice weekly COVID-19 testing.  The legal process for evaluating and deciding on medical and religious exemption requests is complicated and can easily trip up employers. Getting employment law counsel involved with this process can ensure that the necessary steps are followed and that decisions are factually and legally sound.

Healthcare and High-Risk facilities affected by EO 283 should do the following:

  • Determine if they are covered under the CMS Vaccination Rule and/or NJ Executive Order.
  • Develop a list of employees who are vaccinated and unvaccinated.
  • Plan for staff shortages if employees refuse to vaccinate.
  • Develop and implement a written policy stating the employer’s requirements related to the CMS vaccine mandate and/or NJ Executive Order. Inform employees of their responsibilities and what will happen to them (including discipline) if they do not comply. Include a process to address religious and medical exemption requests from employees and a process for evaluating such requests.
  • Develop a process for obtaining vaccination documents from staff and keeping it in a secure confidential location.
  • Develop a tracking system to keep track of vaccination proof received and staff compliance with the vaccination deadlines.
  • Identify accommodations to be given to exempt employees, such as testing, masking, telework, etc.

If you are an employee or employer affected by this Rule and have questions, reach out.