On October 20, 2021, Governor Murphy signed Executive Order 271, which requires that New Jersey state contractors mandate vaccination or weekly COVID-19 testing for all their employees. This follows several other vaccine mandates that have been imposed by the State of New Jersey and the federal government. As these mandates go into effect, public and private employers need to be aware of their obligations under state and federal law to vaccinate and/or test their employees for COVID-19.
Executive Order 271 and Other State Vaccination Mandates in New Jersey
Executive Order 271 mandates that the State of New Jersey and all state agencies and authorities include a clause in all State contracts requiring the contractor and any subcontractors to maintain a policy requiring that their employees are fully vaccinated or undergo weekly COVID-19 testing. EO 271 applies to all new contracts, all new solicitations for a contract, and any renewal or extension of a previous contract in which the cost of the contract is to be paid out of State funds. Specifically, the Order covers contracts for “services, construction, including demolition, remediation, removal of hazardous substances, alteration, custom fabrication, repair work, or maintenance work, or a leasehold interest in real property.” The Executive Order covers employees of contractors who enter, work at, or provide services in any place in which any state department or agency conducts business or is within the department or agency’s control.
EO 271 is the latest in a series of Executive Orders by Governor Murphy mandating vaccination or COVID-19 testing for certain employees. Prior New Jersey Executive Orders mandated vaccination or weekly COVID-19 testing for groups of other types of employees described below:
- EO-252 (August 6, 2021): Health Care facilities and high-risk congregate settings.
- EO-253 (August 23, 2021): School employees (public, private, parochial and charter schools) – elementary and secondary schools.
- EO-264 (September 20, 2021): Child Care Facilities.
Notably, all the State mandates currently provide employees with the option to forego being fully vaccinated and instead to undergo weekly COVID-19 testing as an alternative.
Federal Vaccination Mandates
The federal government has also imposed vaccination mandates. In September, President Biden issued Executive Order 14043, which requires all federal employees to be fully vaccinated by November 22, 2021. On the same date, President Biden issued Executive Order 14042, which requires that federal contractors impose mandatory vaccination policies on their employees. In certain respects, the federal contractor vaccination mandate is similar to the mandate signed by Governor Murphy for state contractors; for instance, it applies to all new contracts and any renewal or extension of an existing contract. Unlike the NJ Executive Orders, which permit an employee to voluntarily opt to get weekly COVID-19 tests instead of getting fully vaccinated, the federal mandate does not offer employees this option.
Moreover, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) is expected to issue an emergency order that will require all employers with 100 or more employees to mandate that its employees are fully vaccinated or get tested for COVID-19 at least once per week. OSHA is expected to release this directive very soon. Similarly, the Centers for Medicare & Medicaid Services are drafting regulations that will mandate vaccination for employees of certain healthcare facilities that receive Medicare and Medicaid funding. These rules are set to be released before the end of this month.
There is an expanding list of employers that are facing the prospect of having to implement mandatory vaccination or testing under both state and federal orders. When a company becomes subject to these new requirements, it must quickly determine the best way to implement and enforce them, and to update the Company’s COVID-19 Protocol. Employee resistance to the mandates and the legal risks implicit with collecting proof of vaccination and imposing mandatory COVID-19 testing on employees make this a complicated area for companies to navigate.
For more information regarding vaccination and testing mandates or assistance with preparing or updating your COVID-19 Protocol, please contact Douglas E. Solomon, Esq., Partner and Chair of the firm’s OSHA Practice Group via email here or 973.533.0777.