Vaccination or (Possibly) Termination: Appellate Division Affirms NJ Executive Order 283

The Appellate Division upholds Governor Murphy’s Executive Order 283, one of the most recent COVID-19 mandates requiring full vaccination (without the alternative option for testing) for covered workers in healthcare and high-risk congregate facilities.

Facts

On August 6, 2021, New Jersey Governor, Phil Murphy issued Executive Order 252 requiring covered healthcare facilities and high-risk congregate settings, such as correctional facilities, to establish vaccination policies. Under Executive Order 252, these covered facilities would have to require that covered workers either show proof of full vaccination status or submit to COVID-19 testing at a minimum one to two times per week. The policy requirement went into effect on September 7, 2021.

Amidst the rise of the Omicron variant of COVID-19, Governor Murphy re-declared a state of emergency on January 11, 2022. Shortly after, the Governor issued Executive Order 283 (or the “Order”). As with its predecessor (Executive Order 252), Executive Order 283 covers employees in healthcare and high-risk congregate settings. However, the new Order eliminated the option for testing in lieu of vaccination. With the issuance of Executive Order 283, covered workers would have to be fully vaccinated by certain dates – barring a disability, medical, or religious accommodation. The Order further required that covered facilities institute procedures to discipline noncompliant, covered workers, which may include termination.

In response to Executive Order 283, the New Jersey State Policemen’s Benevolent Association (PBA) and the New Jersey Superior Officers Law Enforcement Association (SOA) both separately filed applications with the Appellate Division requesting permission to file a motion for a stay of the Order – meaning that, even with the approaching deadlines for vaccinations, the policy requirements would not be in effect until the Appellate Division could review the appropriateness and reasonableness of the Executive Order.

Appellate Division’s Decision

On February 11, 2022, in Policemen's Benevolent Assoc. v. Murphy, the Appellate Division determined that Governor Murphy was acting within the scope of his executive power when issuing Executive Order 283. The Division first noted that COVID-19 had created an emergency situation and, by issuing the Order, the Governor was appropriately exercising his power to protect the health, safety, and welfare of the State during such emergency. Second, the Division discredited the arguments that New Jersey was no longer in a state of emergency that would justify the exercise of executive power because Governor Murphy had re-declared a state of emergency on January 11, 2022.

Next, the Appellate Division determined that the vaccination policy requirement of Executive Order 283 was rationally related to the legislative goal of public protection. In making this determination, the Division pushed back on the applicants’ positions that the requirement was too onerous. Specifically, the applicants argued that New Jersey had been in a state of emergency for approximately two years and, because none of the measures taken previously had stopped the spread, COVID-19 was, as SOA stated in its brief, “here to stay.” The Division suggested that the length of the pandemic may actually support the need for greater requirements regarding vaccination.

The PBA and SOA also argued that a vaccination mandate violated constitutional rights, among other rights. The Appellate Division cited to prior case law and reiterated that a vaccination mandate in the face of a public health emergency is a “proper exercise of the police power.” The Division similarly dismissed applicants’ arguments that the Order violated collective negotiations rights because “not all areas are negotiable.”

Ultimately, the Appellate Division denied PBA and SOA’s applications as it determined the Order was appropriately issued and reasonably tailored to combat the COVID-19 pandemic and Omicron variant surge.

Bottom Line

Whereas the previous Executive Order 252 allowed for a testing alternative, covered healthcare and high-risk congregation facilities must now adopt policies requiring proof of up-to-date vaccination status of covered workers, which is not limited to employees and covers anyone working in the facility. The Order outlines dates for showing proof of a first vaccination and then proof of full, up-to-date vaccination. These dates differ depending on whether or not the facility is subject to the federal vaccine mandate through the Centers for Medicare and Medicaid Services.

Executive Order 283 covered facilities must also establish disciplinary processes for addressing issues of non-compliance. The Order does not tell facilities how to discipline workers, but it does state that such discipline “may” include termination. As with any disciplinary process, employers should specifically outline the consequences of non-compliance (whether a progressive discipline policy or immediate termination) and follow those rules with every covered worker to avoid potential litigation. Further, employers must be aware that covered workers still have rights to reasonable disability, medical, or religious accommodations.

Covered facilities should work with counsel to formulate vaccination and disciplinary policies that comply with Executive Order 283, as well as to determine processes for addressing accommodation requests.

For more information regarding this decision and best practices to implement effective policies for your workforce, please contact John C. Petrella, Esq., Partner in Genova Burns Employment Law & Litigation practice via email here, or Nicole L. McCann, Esq., via email here, or 973.533.0777.