Gov. Phil Murphy did bring some welcome news this week in ceasing masks and social distancing requirements for vaccinated employees in non-public facing office spaces. As employers consider their workplace policies, there are a few caveats to heed. 
“There’s no doubt that the governor’s announcement on Monday that public-facing businesses can rescind mask mandates and his following EO on Wednesday, clarifying the same for non-public facing business, were welcome news,” said NJBIA President and CEO Michele Siekerka. “Businesses have been waiting for this moment for a long time.”
“We want to ensure that employers are well-versed on how this may affect new office policies since employers still don’t have liability protections should an employee claim they have contracted COVID-19 at the workplace.”
Over the course of the past year, NJBIA and other business groups have lobbied both state and federal legislators for these protections.
New Jersey’s leading policymakers, however, have been unwilling to accommodate those business concerns from the business community – despite reports that New Jersey leads the nation in COVID-19 workplace lawsuits per capita.
“Business liability protections are a really big deal for business,” Siekerka said. “We know for more than a year businesses were out there checking the safety boxes on protocols and procedures to bring their workforce back safely and they take this very seriously.
“With the loosening of mask and social distancing restrictions, it is possible that claims will be made by employees or customers who contend they caught COVID at a place of work. What should be further considered is that there is a proper protection for businesses when COVID-19 can be contracted anywhere.”
For employers who do want to take advantage of relaxing state COVID-19 requirements, they must require proof of full vaccination from employees before allowing them to work without masks or social distancing.
NJBIA has learned from the administration that what constitutes an acceptable form of proof that an employee is fully vaccinated is at the discretion of the employer, though subject to EEOC guidance and federal and state laws.
NJBIA’s HR Support Experts encourage that employers take great care in not asking for more information than is necessary. The request for proof should only include an employee’s name and date of vaccinations.
Employers should also avoid any follow-up questions to ensure they are not making a “medical inquiry,” which would be against Americans with Disabilities Act (ADA).
Employees who are not vaccinated because of legitimate religious beliefs or disability, are protected by Title VII of the Civil Rights Act and employers are required to make reasonable accommodations.
Gov. Murphy this week also lifted the requirement to accommodate remote working, starting on June 4. Siekerka added that there may indeed be cases where employees don’t feel comfortable returning to the office or are still unable to for medical reasons.
“This is where employers really need to step back and compose an office policy based on their needs, but one that also follows the law,” Siekerka said. “In many cases, accommodations for continued remote work may still need to be made for certain employees.”
