With the Omicron variant infusing the year’s start with more COVID-19 cases than ever, there are major businesses such as Apple hinting at companywide booster mandates and many more organizations asking their lawyers whether such a policy would be legal.
The answer they’re giving?
A resounding “Yes, but …”
Even if health officials say the data presents a rock-solid case that more than two shots will be needed to provide protection against infection for the remainder of 2022, New Jersey attorneys say employers have to make decisions about mandates on a case-by-case basis.
“There’s a lot of reasons this is not a rubber-stamp issue,” said Michael Shadiack of Connell Foley. “Everyone has to look at it individually from what fits their own company as far as size and staffing, and where their employees are based.”
Shadiack, chair of the Roseland firm’s Employment Group, said there’s sometimes a distance between what’s by-the-book legal and what makes sense for a company when it comes to this topic.
Reinforcing new rules
There are better ways to celebrate the start of a new calendar year than million-dollar fines and business shutdowns.
So, Lisa Gingeleskie, partner at Lindabury, McCormick, Estabrook & Cooper P.C., says: Don’t ignore the warning attorneys have given since late last year of the new employee classification scrutiny in the Garden State.
Gingeleskie expects 2022 to be a year of heightened enforcement of the rules the state rolled out in 2020 and 2021 to penalize companies misclassifying employees as benefit-ineligible independent contractors.
“We’re now starting to see increased litigation around that, and serious consequences, including the imposing of fines and shutdown orders,” she said. “Especially as we come out of this latest variant wave, and more people start getting back to work, we’re going to see even more of an increase in this litigation.”
New Jersey is one of the states at the forefront of enforcing the so-called ABC test, a trio of stringent characteristics — such as, in simple terms, a contractor you lack direct control of, who does the same work for other companies — that have to be proven to mark a professional as legitimately an independent contractor.
Just having a remote worker operating outside the bounds of the 9-to-5 workday isn’t enough.
“Employers can’t lose sight of that,” Gingeleskie said. “You can’t presume you don’t have much control over a worker simply because it’s the pandemic. And, ultimately, you have to make sure you’re in compliance with all the rules.”
Here’s an example of that: Is it a permissible medical inquiry for an employer to ask for proof of someone’s vaccination status and whether they’ve followed up with the booster? It is, he said.
And, here’s the caveat that accompanies many of these answers: It’s also part of an employee’s medical record that should be protected within an organization. And that involves some work.
If you’re going to ask for employees to get a booster, Shadiack said, you should have the appropriate personnel for handling that confidential information, as well as having someone who can calculate the amount of time that’s transpired since an employee’s primary vaccination and when they’re due for a booster.
It’s a multifaceted operation that someone in an organization who handles HR issues will have to remain responsible for — as it shouldn’t be in the hands of supervisors, Shadiack said.
“And that’s a lot of administrative burden for a smaller company that might not have an HR team or a professional to figure out and keep track of,” he said. “Those are very practical considerations that I know a lot of employers I’ve been speaking with over the past few months have been wrestling with.”
Employment law divisions within law firms have seen an uptick in interested clients who are ready and willing to work out such details.
Those who didn’t introduce any changes during the initial conversations about vaccine mandates sometimes remain in investigation mode, trying to decide whether the time is right now.
“As those companies are looking at this, they’re asking, ‘What percentage of our workforce is fully vaccinated and how many have the booster already?’” Shadiack said. “I’ve heard from some clients that many of their employees already went out and got the booster on their own; they have very few employees not vaccinated or without the booster. So, they have to decide how hard to push on this issue if a lot of employees are deciding to get this on their own.”
The federal government’s rules, for now, won’t be the main motivator.
An emergency temporary standard, or ETS, requiring employers with 100 or more employees to either mandate that all employees are vaccinated or submit regular COVID-19 tests had a temporary injunction reapplied to it by the Supreme Court ahead of its effective date in January. As a result, on Jan. 26, OSHA withdrew the ETS.
“When you don’t have federal standards, as it seems we won’t for now, employers are left to look at individual states,” Shadiack said. “And, if there is no state guidance — and, for New Jersey employers, there’s no state mandate except for certain industries — it’s up to each employer to decide for themselves what they want their policy to be.”
There, again — no surprise — is a complication.
Shadiack said that, as more companies have turned to remote work, and as a result have employees spread out across multiple states more than they once did, employers have to take into account what the rules might be in other states as well as where they’re headquartered.
Right now, there are 13 states that have some form of guidance on the issue, Shadiack said. Some states, such as Montana and Texas, don’t allow employers to mandate vaccines. New Jersey employers with remote workers in those states should be mindful of that, and evaluate whether those rules apply only to residents in the states or companies with a presence in them.
Patti Prezioso, chair of the employment and labor practice at Sills Cummis & Gross P.C., said neither these different components of enacting mandates at companies, nor the blow the Supreme Court struck to the proposed ETS, have stopped employers cold.
There are many out there still warm to the idea of these mandates as a way to keep customers and employees safe, she said. Some feel strongly enough about the protections offered by the vaccine to start questioning the continued granting of requests for religious exemptions and medical accommodations that must be offered by employers.
Those requests have to be deemed by the company as reasonable and not carrying the potential of undue hardship for an organization.
“But I believe what we’ll see more and more is businesses assessing whether requests for accommodations are legitimate and how accommodating such exceptions work with maintaining the safety of the workforce,” she said. “Businesses may feel it’s a harm to them to allow certain accommodations that could cause regular business interruptions. They might say that, while they value an employee, they can’t grant such exemptions.”
A lot of that depends on the circumstances of an organization: Can it be run with employees segregated in office spaces or working remotely? Or is it a work situation in which employees are regularly in close contact and risk endlessly circulating virus variants?
Shadiack said the sector most interested right now in having the entirety of its workforce fully vaccinated at all times, from his firm’s experience with clients, is higher education.
“Universities in particular feel it’s that important to protect not only their faculty, but their students,” Shadiack said. “They’ve heard from many parents that it’s an important step as they inquire about what the school is going to do. So that’s where we’re seeing the most traction on mandates.”
In other industries, law firm clients are often still trying to find their way, he added.
There’s a lot to consider, and a lot of potential for state or federal guidelines to change.
“In my humble opinion, all that is going to take a lot of time to be resolved,” he said. “So, what I tell all of our clients: It’s time to stop waiting to see what’s going to happen and start implementing your own policies based on what makes sense for you.”