Joel Greenwald, managing partner, Greenwald-Doherty

New Jersey businesses can now allow vaccinated employees to remove their masks at work, under the state’s latest COVID-19 guidance. However, employers who do so should prepare for the challenges this policy creates, lawyers say.

During a recent NJBIA webinar, attorneys from Greenwald-Doherty, a law firm that advises employers on HR-related legal needs, discussed the pitfalls that can occur when an employer allows vaccinated employees to go without masks at the same time there are unvaccinated co-workers who are still wearing masks.

“One of the main reasons I see companies wanting to get people back to the office is because they want people to be working with a little more camaraderie that is missing in the remote sense,” said Joel Greenwald, managing partner at Greenwald-Doherty. “Then suddenly you have certain people wearing masks and certain people not wearing masks and we’ve seen issues with that.”

Zev Singer, partner, Greenwald-Doherty

Attorney Zev Singer noted the “policing” issue that arises in large companies because an HR person has been shown an employee’s vaccination card, but a lower-level manager who directly oversees a group of workers does not have access to confidential health information.

“You can’t just announce who has been vaccinated,” Singer said. “You can’t make people wear a bracelet or a sticker to show they’ve been vaccinated. So, in a warehouse with 200 people you don’t know who has been vaccinated and who has not, so how do you enforce this mask-on, mask-off policy?”

Some employers might decide to get around this problem by mandating that all employees be vaccinated in order to return to the workplace, and while that is legal it can create unintended consequences for employers.

Be prepared for the possibility that some top-performing workers may be among the unvaccinated who have no legitimate medical or religious reason that qualifies them from skipping the vaccine, Singer said.

By requiring all employees to be vaccinated, employers could be putting themselves in a situation where they will be forced to let go some of their best employees—or risk losing credibility with their entire workforce if they institute a policy and then allow unvaccinated employees to flout it, he said.

“We’re not sitting here saying, don’t do it,” Singer said regarding mandatory vaccination policies. “What we’re saying is if you’re going to do it, play chess and think five steps ahead and be prepared for the consequences – and be willing to live with the consequences.”

To watch the entire webinar, go here.