Lawsuits are based on specific facts. Some judges have decided vaccine mandate legal claims and the results are mixed, though most favor employers. The City of Newark successfully defended a legal challenge to its order that city employees be vaccinated, setting the legal stage for future employee lawsuits in the state.

Kingston Law Group represents employees in a wide range of legal issues, including employment discrimination. If you have a medical condition that is threatened by a vaccine mandate and have questions about your legal rights, COVID-19, and your workplace, give us a call at 1-609-683-7400.

There Must be Exceptions to a Vaccine Mandate

New Jersey employers are within their rights to mandate a COVID-19 vaccination as a condition of employment. This depends on whether:

• A contract or Employee Handbook provision applies and, if so, what language covers the mandated vaccine circumstance
• An employee seeks a reasonable accommodation for not getting vaccinated based on disability

If the employee feels they haven’t been reasonably accommodated, they could use legal action to force the employer not to apply the policy to them. Challenging an employer’s power to mandate vaccines would almost certainly be a waste of time.

New Jersey Public Employees Can be Required to Get Vaccinated or Face Discipline

In a decision issued September 27, the Superior Court of New Jersey, Appellate Division, sided with the city of Newark in a legal challenge by unions representing city employees. The court reviewed an order by the state’s Public Employment Relations Commission (PERC) which reviewed an order by the city’s mayor mandating all employees be fully vaccinated.

PERC’s order denied in part and granted in part a request the mayor’s order be stopped. The appeals court found in favor of Newark, essentially giving it everything it wanted. Any parts of the PERC order limiting what they could do were overruled. “In short, all restraints imposed by PERC are vacated, and the City can fully implement and enforce its COVID-19 vaccination mandate forthwith,” the decision states.

Mayor Ras J. Baraka issued an executive order on August 10 that all city employees be fully vaccinated against COVID-19. It cited numerous facts about the pandemic, the effects of the infection, and vaccinations.

The order mandates employees show proof of full vaccination. If they’re not fully vaccinated, they must show that’s the case within 30 days. Within that time, they must be tested for COVID-19 weekly at the worker’s expense. The order gives exceptions for religious beliefs and medical reasons. Failing to comply could result in discipline up to termination. Employee unions stated the order was an unfair labor practice.

Even language of the collective bargaining agreement, state labor statutes, and countless legal decisions on public employee-employer relations couldn’t save the unions. “We hold that the City has a non-negotiable managerial prerogative to immediately implement its COVID-19 vaccination mandate,” the decision states.

When there’s a public health emergency, government entities have a right to require vaccinations, according to the decision. Such a public health emergency exists, and the vast majority of those hospitalized due to COVID-19 are unvaccinated.

The unions claimed the mayor couldn’t issue this order without the power to do so explicitly stated in a state statute. The court disagreed. It found:

[T]he City has a well-recognized right to hire or direct its workforce….That right, coupled with the clear national and state public policy to combat the health threats posed by COVID -19, supports the City’s authority to implement a vaccination mandate. In that regard, our Supreme Court has recognized that the COVID-19 pandemic is an extraordinary situation justifying extraordinary responses.

In New Jersey, public employers have a legal right to mandate vaccination. Generally, public employees have greater legal protections than private employees, so it is rational to believe private sector employers’ rights will be similarly upheld.

Private Employers Have Significant Power to Control the Workplace and Employees

Two federal courts upheld vaccine mandates imposed on private employees at Houston Methodist Hospital in Texas. A District Court in June upheld the employer’s COVID-19 employee vaccine mandate. The US Court of Appeals for the Seventh Circuit later affirmed the decision.

A major part of the challenge was that the vaccines were approved by the federal Food and Drug Administration only for emergency use, not finally approved. That’s no longer the case as the Pfizer-BioNTech vaccine received official approval in August.

Judge Lynn Hughes stated the vaccine mandate was like other employee and visitor safety management policies employers can implement. Objecting hospital employees claimed their employer was illegally coercing them to be vaccinated because they would be fired if not. Judge Hughes didn’t see it that way.

This is not coercion. Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer. (The plaintiff) can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else…If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.

If a judge sees a vaccine policy as just another way an employer can manage its facility and employees, the employer will win the case almost all the time.

Do You Feel Your Employer is Unfairly Forcing You to be Vaccinated?

Contact our Kingston law offices if you have questions or concerns about a vaccination policy or how your disability is not being accommodated. You may reach us online, via email (hisaacs@kingstonlawgroup.com), or by phone (609-683-7400).

We will schedule a near-term, reduced fee, initial consultation. We can be protected by social distance and masks, Zoom, or we can speak on the phone. We take credit card payments and have general appointments from 9 a.m. to 5:30 p.m., Monday through Friday. We can also schedule evening appointments during the week by pre-arrangement only.

We will listen to your facts, explain the law, and outline your best avenues for full recovery and economic justice. Contact us today. You’ll be glad you did.