"Un-Masking" Executive Order 243: Navigating Return to Work Rules in New Jersey

Bressler, Amery & Ross, P.C.
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On May 26, 2021, Governor Phil Murphy of New Jersey issued Executive Order 243 lifting COVID-19 mask restrictions in the workplace, which provides some much needed guidance on bringing employees back into the workplace.  Following the issuance of Executive Order 242, which lifted the mask mandate for “indoor public spaces,” E.O. 243 relaxes the mask mandate for vaccinated employees in private workplaces and rescinds the requirement that employers must accommodate telework arrangements to the maximum extent possible. Employers have the ability to implement stricter requirements for their employees, as long as they are still compliant with state and federal laws.

While this news comes with sighs of relief that we are returning to our “new normal,” employers may be left wondering what this means for their workplaces and how to navigate the changing landscape regarding vaccine reporting, mask requirements, and work from home requirements. 

MASK MANDATES

New Jersey employers may permit vaccinated employees to no longer wear face masks or social distance at the office, so long as the employee can provide proof they are fully vaccinated.  As we discussed in a prior alert, requiring vaccinations remains permissible, but employers should consider the legal and practical implications of such a decision which requires accommodation.  Likewise, other employers may be grappling with the question of whether to mandate employees to disclose their vaccination status.  Depending on the workplace culture, this too can be a difficult question to navigate.  Ultimately, in New Jersey, however, if an employee does not provide proof of vaccination or is not fully vaccinated, the employee must continue to mask and social distance. Vaccinated employees should also feel welcome to continue wearing masks and social distance. 

Ultimately, the passing of E.O. 243, although somewhat unclear, leaves employers with a choice of how to manage the return to work process in New Jersey.  Some employers may choose to require their employees to provide copies of their vaccination card while others may choose to simply have an employee fill out a survey attesting to their vaccination status.  Although E.O. 243 is not clear, we are recommending that New Jersey employers require proof rather than self-certify. Outside of New Jersey self-certification or the honor system may be sufficient.  It is important to keep in mind that employees will be providing confidential medical information and this must be kept private, separate, and apart from typical personnel files.  Employers should also be careful not to ask any additional medical questions.

Moreover, employers must be conscious that new workplace safety standards could result in bullying or harassment based on vaccine status and mask use. In order to prevent this behavior, employers should work to clearly announce and enforce all policies and procedures.

REMOTE WORK ACCOMMODATION

Additionally, E.O. 243 lifts the requirements of earlier executive orders requiring that employers accommodate their employees working from home.  This means that employers no longer are required to accommodate telework, and may start plans to re-open offices bringing employees back to work in-person.

OTHER WORKPLACE SAFETY MEASURES

Employers must still comply with the guidelines under Executive Order 192, including disinfecting high-touch areas and notifying employees of known exposures in the workplace.

Bottom Line: There is not one blanket approach for every employer. Rather, employers should consider their specific workforce and culture before taking any action. While things are starting to open back up in New Jersey, employers are encouraged to take things slowly as they think things through and consider plans on requiring employees back to the office in-person.  Employers may decide to implement flex work arrangements to those employees who continue to need remote work.  With the return to our “new normal,” we recommend employers clearly communicate their policies and expectations with their employees to prevent any unwelcome harassment based on vaccination status or mask use.


[1] The author thanks law clerk Siena Carnevale for her assistance in drafting this client alert.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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