May 2021, New Jersey Governor Phil Murphy issued Executive Order 243 Lifting COVID-19 Mask Restrictions in the Workplace, which contains some much-needed guidance on how to get workers back to work. Following the enactment of Executive Order 242, which abolished the mask requirement for “public interiors”, EO 243 relaxed the mask requirement for vaccinated employees in private workplaces and removed the requirement that employers must take teleworking regulations into account as far as possible. Employers have the option to impose stricter requirements on their employees as long as they comply with state and federal laws.

While this news comes with a sigh of relief that we are returning to our “new normal,” employers may be wondering what this means for their jobs and how to navigate the changing landscape for vaccine coverage, masking, and home work requirements.

MASKING MANDATES

New Jersey employers can allow this vaccinated Employees stop wearing face masks or social distancing in the office as long as the employee can show they are fully vaccinated. As we discussed in a previous warning, the requirement to be vaccinated is still acceptable, but employers should consider the legal and practical implications of making such a precautionary decision. Likewise, other employers could grapple with the question of whether they should require their employees to disclose their vaccination status. Depending on your workplace culture, this can also be a tough question. Ultimately, however, in New Jersey, if an employee fails to provide proof of vaccination or is not fully vaccinated, the employee must continue to maintain mask and social distance. Vaccinated employees should also feel welcome to continue to wear masks and keep social distance.

Ultimately, the passage of EO 243, though somewhat unclear, leaves employers a choice on how to handle the New Jersey return to work process. Some employers may require employees to provide copies of their vaccination card, while others choose to have an employee simply complete a survey confirming their vaccination status. While EO 243 is not clear, we recommend employers in New Jersey require proof rather than self-certifying. Outside of New Jersey, self-certification or the honor system may be sufficient. It is important to remember that employees provide sensitive medical information and that it must be kept confidential, segregated, and segregated from typical personnel files. Employers should also be careful not to ask additional medical questions.

In addition, employers need to be aware that new occupational safety standards can lead to bullying or harassment due to vaccination status and the use of masks. To prevent this behavior, employers should work to clearly announce and enforce all policies and procedures.

ACCOMMODATION FOR REMOTE WORK

In addition, EO 243 repeals the requirements of previous implementing regulations that require employers to host their workers from home. This means employers are no longer required to allow teleworking and may have plans to reopen offices to get employees back to work in person.

FURTHER WORK SAFETY MEASURES

Employers must continue to comply with Executive Order 192 guidelines, including disinfecting high-touch areas and notifying employees of known workplace exposures.

Bottom line: There is no one-size-fits-all approach for every employer. Rather, employers should consider their specific workforce and culture before taking action. As things reopen in New Jersey, employers are encouraged to take things slowly and consider plans to get employees back to the office in person. Employers can decide to introduce flexible working hours for those workers who continue to need remote work. With the return to our “new normal”, we encourage employers to clearly communicate their policies and expectations to their employees in order to prevent unwanted harassment due to vaccination status or the use of masks.

[1] The author thanks legal trainee Siena Carnevale for her assistance in preparing this customer warning.