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New Jersey Mandates Vaccines or Testing for Workers in Healthcare and High-Risk Congregate Settings

New Jersey is requiring employers in covered healthcare and high-risk congregate settings to establish a policy which:

  1. Mandates vaccinations or weekly testing for workers;
  2. Creates a system to track the results of the applicable testing requirements; and
  3. Creates a system to communicate the results of such testing to local public health departments.

Executive Order 252 (EO), issued by Governor Phil Murphy on August 6, 2021, took effect on September 7, 2021. Covered employers must ensure adequate policies, privacy protections, and training or education procedures are in place to comply with the mandate.

Covered Settings. The EO defines “covered settings” as follows:

  • Healthcare facilities, including:
    • Acute, pediatric, inpatient rehabilitation, and psychiatric hospitals (including specialty hospitals, and ambulatory surgical centers);
    • Long-term care facilities;
    • Intermediate care facilities;
    • Residential detox, short-term, and long-term residential substance abuse disorder treatment facilities;
    • Clinic-based settings (e.g., ambulatory care, urgent care clinics, dialysis centers, Federally Qualified Health Sites, family planning sites, and opioid treatment programs);
    • Community-based healthcare settings (e.g., Program of All-Inclusive Care for the Elderly, pediatric and adult medical daycare programs, and licensed home health agencies and registered health care service firms);
  • High-risk congregate settings, including:
    • State and county correctional facilities;
    • Secure care facilities operated by the Juvenile Justice Commission;
    • Licensed community residences for individuals with intellectual developmental disabilities (IDD) or traumatic brain injuries (TBI);
    • Licensed community residences for adults with mental illness;
    • Certified day programs from individuals with IDD or TBI; and
    • Certain long-term care facilities subject to prior New Jersey Department of Health Executive Directives.

Covered Workers. The EO applies not only to employees (full-time or part-time), but to contractors and any other individuals working at the covered setting, including individuals providing operational or custodial services or administrative support. The EO does not address whether individuals (i.e., salespersons, vendors) who may occasionally visit for business-related purpose would be covered under these requirements, but conservatively, covered settings should consider requiring all individuals to comply.

Proof of Vaccination Status. Acceptable proof for vaccination status includes:

  • The Centers for Disease Control and Prevention (CDC) COVID-19 Vaccination Card issued by the vaccination site (or an electronic or physical copy of the card);
  • An official record from the New Jersey Immunization Information System (or other state registry);
  • A record from a healthcare provider’s portal or record system on official letterhead, signed by a licensed physician, physician assistant, nurse practitioner, registered nurse, or pharmacist;
  • A military immunization record from the Armed Forces; or
  • A docket mobile phone application record or any state specific application that produces a digital health record.

Certifications alone will not satisfy the proof requirement. Covered settings must implement measures to protect the health information provided and ensure it is treated as confidential. If a worker’s vaccination status is unknown or the worker fails to provide adequate evidence of vaccination, the covered setting must treat the individual as unvaccinated for purposes of the policy.

Unvaccinated Workers. Any unvaccinated covered worker in a covered setting must submit to testing at least one to two times per week. The EO is silent on the issue of employee choice, but presumably a worker can choose whether to submit to testing through the covered setting or at a testing provider of their choice. If a covered worker is not working onsite at the covered setting during a week when testing would otherwise be required, the worker is not required to submit to testing that week.

The covered setting also must establish a policy for recording test results and report those results to its local health department. Healthcare employers should maintain vaccination records and testing results in a separate medical file, apart from any medical file that may be otherwise maintained by the employer.

Reasonable Accommodations. The EO does not address issues regarding disability or religious accommodations, but it would stand to reason that if a worker is unable to be vaccinated then an employer may still require these workers to submit to weekly testing.

Next Steps for Employers

Nothing in EO prevents a covered setting from instituting a vaccination or testing policy that includes additional or stricter requirements, so long as the policy meets the minimum requirements of the EO. A covered setting may also maintain a policy that requires more frequent testing of covered workers.

It should also be noted that the EO does not specify whether the employer must cover the cost of testing. Presumably, many covered settings may have easy access to testing and the ability to issue on-site testing. However, where this is not the case or should an employee choose to have testing conducted offsite employers should have a policy in place that indicates whether the cost of testing will be covered and in what circumstances the cost will be covered (i.e., when using onsite testing versus choosing offsite testing).

Further, the EO presents issues regarding privacy such as recording and transmission of protected health information and paying employees for time spent completing tests which will require covered employers to prepare and and implement procedures to ensure compliance.

HR Works, Inc., headquartered at 200 WillowBrook Office Park in Fairport (Rochester), New York, with an office in East Syracuse, is a human resource management outsourcing and consulting firm serving clients throughout the United States. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.