By Heather Boshak, partner, Fox Rothschild LLP
In January 2022, New Jersey announced new, stricter COVID-19 regulations that will require employees in healthcare facilities to be vaccinated and boosted and will effectively eliminate the testing option. Also covered under the new rules are workers in a range of congregate settings, such as prisons and group homes.
As the number of new coronavirus cases and hospitalizations declined, we have seen states, cities and private employers easing vaccination and coronavirus mitigation requirements. The exceptions to that trend are the healthcare field, including in the state of New Jersey. The mandates in New Jersey are among the strictest is the nation and exceed the vaccination requirements for entities covered by the Centers for Medicare & Medicaid Services (CMS) interim final rule, which applies to Medicare- and Medicaid-certified facilities.
On Aug. 6, 2021, New Jersey Gov. Phil Murphy issued Executive Order 252, which mandated that covered healthcare and high-risk congregate setting entities adopt and implement policies by Sept. 7, 2021, requiring covered workers to be up to date with their COVID-19 vaccinations (which at the time was only the primary dose or doses) or submit to COVID-19 testing at a minimum of once to twice weekly.
Entities covered by the order included the following healthcare settings:
- Acute, pediatric, inpatient rehabilitation and psychiatric hospitals, including specialty hospitals and ambulatory surgical centers;
- Long-term care facilities, including the state veterans’ homes;
- Intermediate care facilities, including the state developmental centers;
- Residential detox, short-term and long-term residential substance abuse disorder treatment facilities;
- Clinic-based settings like ambulatory care, urgent care clinics, dialysis centers, Federally Qualified Health Centers, family planning sites, and opioid treatment programs;
- Community-based healthcare settings including Program of All-Inclusive Care for the Elderly (PACE) and pediatric and adult medical daycare programs;
- Licensed home health agencies and registered healthcare service firms operating within the state.
The reach of the order was expansive — it included all full- and part-time employees, contractors and other individuals who worked in the covered settings, including individuals providing operational or custodial services or administrative support. While this executive order did not cover private physician offices, practitioners who rendered services to hospitals or other facilities covered by the order were required to comply with the vaccination requirements of those facilities.
Omicron prompts new executive order
The rise in cases due to the Omicron variant prompted Go. Murphy to review the mandates. While acknowledging that more employees in covered entities had received their primary vaccination series (88 percent of healthcare workers, 87 percent of long-term care workers and 73 percent of high-risk congregate setting workers), the number of such employees who had received a booster shot remained low — just 48 percent of eligible individuals statewide.
Executive Order 283, issued on Jan. 19, 2022, eliminated the option of covered workers to produce negative tests rather than be vaccinated and required boosters for all workers at covered entities. EO 283 also revised the definition of being up-to-date on vaccinations to include any boosters recommended by the Centers for Disease Control and Prevention (CDC). The order did, however, allow a testing alternative for individuals who qualify for accommodations based on disability, medical condition or sincerely held religious belief, as required by federal and state law.
EO 283 established deadlines for compliance. Covered employees were required to be fully vaccinated and boosted by Feb. 28, 2022, for an entity covered by the CMS interim final rule, and by March 30, 2022, for other covered entities, or within three weeks of becoming eligible for a booster, whichever was later.
Unvaccinated employees who had previously relied on testing were required to continue to provide test results until they were up to date on vaccinations. Enforcement mechanisms were also included in EO 283. It mandated a disciplinary process for employee non-compliance, including possible termination of employment.
Responses and court challenges
Not everyone was happy with the new mandates. Several unions filed court challenges. A three-judge appellate panel upheld the governor’s authority to issue such a mandate, finding that it was a “rational and measured response to our present circumstances.” The New Jersey Supreme Court declined to review the case.
The nursing home industry also appealed to the governor to rescind the booster shot requirement in an effort to ease staffing shortages. While the New Jersey Hospital Association supported the mandates, it implored the governor to delay the deadlines for the booster to provide more time for the covered entities to come into compliance.
To date, the governor has stood firm on the booster mandate in EO 283. However, relying on the revised recommendation by the CDC about optimal intervals between vaccine doses, he issued EO 290 on March 2, 2022, modifying the timeline for compliance with EO 283. Now, employees at entities covered by the CMS rule had until April 11, 2022, and employees at other covered entities have until May 11, 2022, to get boosted (or within three weeks of becoming eligible for a booster does, whichever is later).
But EO 290 also imposed stricter enforcement obligations. Employers are now required to start the disciplinary process against non-compliant employees within two weeks of missing a deadline and employers that fail to discipline employees are subject to penalties and other corrective actions.
What’s next?
Now that the legal challenges have proven unsuccessful, the executive orders stand. All three orders prohibit municipalities, counties, agencies or subdivisions from taking any action that conflicts with the governor’s orders. Nothing in any of the orders limits a covered entity’s ability to impose more stringent requirements.
Correctional workers remain resistant to the mandates, with only about 43 percent of the 7,000 state correctional employees being vaccinated as of mid-February. Long-term care and assisted living facilities are much more in line with the mandates and have seen a significant uptick in vaccinations. As of March 10, 2022, more than 91 percent of staff at long-term care and assisted living facilities were vaccinated. Importantly, almost 70 percent have received their booster shot — a significant increase from the 57 percent that had been boosted approximately two weeks prior.
The pandemic posed extremely challenging staffing issues in some workplaces. Resistance to vaccine requirements has only made the situation worse. Whether the new booster requirement and enhanced enforcement mechanisms further exacerbate the situation remains to be seen given the extended deadlines.
Only time will tell whether any further changes will be made to these deadlines and mandates. But for now, at least, New Jersey is well on its way to achieving a more fully boosted workforce in the healthcare and high-risk congregate settings, regardless of dissension from both employees and employers.
Heather Boshak is a partner at Fox Rothschild LLP and is the regional practice lead for the firm’s Labor & Employment Department for the Morristown, New Jersey office, mainly focusing on employment counseling and employment litigation. She can be reached at [email protected].