No shot?

New Jersey businesses are treading carefully on the issue of requiring COVID-19 vaccines as a condition of employment

Daniel J. Munoz and Gabrielle Saulsbery //August 9, 2021//

No shot?

New Jersey businesses are treading carefully on the issue of requiring COVID-19 vaccines as a condition of employment

Daniel J. Munoz and Gabrielle Saulsbery //August 9, 2021//

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COVID-19 vaccine.

A late July poll by The Associated Press-NORC Center for Public Affairs Research found that among Americans unvaccinated against COVID-19, 35% “probably will not” and 45% “definitely will not” get inoculated. Vaccine resistors remain steadfast despite rising cases of the delta variant and public leaders like Gov. Phil Murphy and New York City Mayor Bill de Blasio are searching for ways to convince more individuals to get vaccinated.

On Aug. 3, De Blasio said that vaccine proof will be required to take part in most indoor activities, including indoor dining, gyms, and theaters. Murphy so far has avoided saying whether he would take the state that far, but he was considering tactics “in the general neighborhood of what New York City is doing.”

Vaccine mandates, by the government or private employers, have proven one of the most politically and culturally polarizing topics, more so than mask mandates. Perhaps not surprisingly, then, when NJBIZ reached out to 55 companies, including some of the state’s largest employers, eight declined to comment and 32 simply did not respond. Among those that did, many said that they had not adopted a mandate but were strongly encouraging their workers to get the jab, be it through strong messaging or incentives.

Michele Siekerka, president and CEO, NJBIA.

“Employers don’t want to be in the position of having to dictate the health care of their employees, nor do they want to be the police over customers frequenting their facilities,” said Michele Siekerka, president and chief executive officer of the New Jersey Business & Industry Association. “It creates animosity and not a great customer experience.”

Some of the state rules on vaccinations do make sense, she said, citing Murphy’s recently enacted vaccine mandate for workers at county jails and correctional facilities, veterans’ homes, psychiatric centers, acute-care hospitals, specialty hospitals, developmental centers, long-term care and assisted-living facilities, short-term and post-acute in-patient rehabs, home health agencies, University Hospital, and all behavioral health care facilities. Those employees have until Sept. 7 to get the shot, or submit to routine testing every week.

“A lot of the health care system already were leaning in these directions,” Siekerka said.

Hospitals such as Trinitas, and two of the state’s largest health care networks: RWJBarnabas and Hackensack Meridian Health, are all mandating the shot.

Meanwhile the private sector, Murphy said on Aug. 3, is “empowered to work on a more ambitious timeline or to require either a more rigorous testing regime or eliminate that option completely and require all employees to be vaccinated as a matter of their continued employment.”

An online poll run by NJBIZ on the issue garnered 73 responses to the question: Is your business/company requiring vaccines as a condition of employment?” Among the respondents, 70% said no; 18% answered yes; and 12% said they were unsure.

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“It’s just if you can avoid it, and it’s never good management to dictate anything to employees these days,” said Tom Bracken, who heads the New Jersey Chamber of Commerce.

Tom Bracken, president and CEO, New Jersey Chamber of Commerce.

Of the companies that did respond to NJBIZ inquiries on the record, several were taking their cues from the Centers for Disease Control & Prevention and news about the spread of the virus.

A TD Bank representative said that while the bank doesn’t currently mandate employee vaccinations, “the situation remains fluid and we are evaluating in real-time.” A Stop & Shop representative said that vaccines won’t be mandated unless required by state and local regulation.

A representative from Bank of America said the company is encouraging staff to get the shot, but not requiring it. Masks must be worn in areas where social distancing is difficult, such as elevators and common areas.

A representative for CVS Health said staff are encouraged to get the vaccine, but there is no mandate in place. “We’ve made it as easy as possible for employees to get vaccinated by providing access to dedicated appointments, holding employee-only clinics, and encouraging walk-in vaccinations at our stores,” said a CVS spokesperson.

Rite Aid, in an email, said the company had “nothing to report.”

Campbell Soup Co. said it’s not requiring the vaccine, but employees nonetheless must share their vaccination status with human resources. “Having this information will help us keep everyone safe and factor into our protocols, including the use of personal face masks, social distancing, travel and other office re-entry plans,” a spokesperson said.

Tim McLoone, owner of several restaurants including Iron Whale in Asbury Park and The Robinson Ale House in Asbury Park, Red Bank and Long Branch, said that “this is evolving on a daily basis now.” His staff recently returned to full masking for all employees, and he noted that “this can be very tough on the kitchen when the heat really ramps up and I think might be as dangerous as catching a disease. So, we are working on doing everything we can to get 100% vaccinations without mandating just yet, although everything is pointing in that direction.”

Joshua Suggs, owner of Delta’s Restaurant in New Brunswick, said his team is “still taking the pulse to see how employees would react to” a vaccine mandate and that he’s undecided if he’ll mandate a vaccine if and when the vaccine gets full Food & Drug Administration authorization.

Chef David Burke of David Burke Hospitality Management said that he needs to make the decision with the various partners he has for each of his restaurants, but that he has “no issue” with the New York City mandate, which affects two of his restaurants.

Amy Russo, owner of Toast in Red Bank, Asbury Park, and Montclair, told NJBIZ, “There’s no way in holy hell that I’d be asking my employees if they got the vaccine or not. There are so many things we can’t ask – we can’t ask someone’s age, but now we can ask this? It’s personal and that’s not something I’m going to mandate, nor am I even going to ask.”

“I make pancakes and eggs for a living. Now I have to ask people if they’re vaccinated and make a judgment on it? Kind of ridiculous,” Russo said.

A Novartis spokesperson sent this statement about the company’s policy: “At Novartis, we have communicated to our associates that we expect that everyone coming on campus has been fully vaccinated or has tested negative for COVID-19 within the last 14 days prior to each site visit. With the increase of people becoming infected with the highly contagious delta variant of the virus, and the potential for more variants to develop among the unvaccinated, we strongly encourage all of our associates to be vaccinated as soon as possible. We will continue to monitor the situation and update our policy as appropriate.”

Joe Berchtold, chief financial officer of Live Nation Entertainment – which operates PNC Bank Arts Center in Holmdel and the BB&T Pavilion in Camden – suggested during a second quarter earnings call on Aug. 3 that the trend is moving toward mandates. “I think what we’re seeing is a shift to increasing requirements for entry of either vaccinated or tested or fully vaccinated.”

But for the most part, employers “simply have not made up their minds,” said Corey Hannah Basch, a professor and chair of the public health department at William Paterson University – hence the radio silence. Many businesses are at an impasse, “waiting for others to make these types of decisions before they do so for themselves,” Basch said. “When and if the majority are initiating mandates, the behavior will become more normative,” she continued.

A United Airlines plane at Newark Airport - United Airlines. - 12ANONYMOUSUSER34/WIKIMEDIACOMMONS.ORGhttps://commons.wikimedia.org/wiki/File:United_EWR.png
United Airlines, which uses Newark Liberty International Airport as one of its main hubs, said it’s requiring the vaccine for any hires after June 16. – 12ANONYMOUSUSER34/WIKIMEDIACOMMONS.ORG https://commons.wikimedia.org/wiki/File:United_EWR.png

Several businesses have already put requirements in place. In July, Lowenstein Sandler Managing Partner Gary Wingens informed his staff that come Aug. 2, the office would be open only to employees who have been fully vaccinated, citing “the progress we have made in making people feel comfortable returning to the office … and the emergence of the more virulent delta variant over the past few weeks.”

United Airlines, which uses Newark Liberty International Airport as one of its main hubs, said it’s requiring the vaccine for any hires after June 16. For those employees hired previously, the carrier is offering financial perks to pilots, and added vacation days. Masks don’t need to be worn at the corporate offices, by any worker who can show that they’ve gotten the vaccine.

Prudential Financial, based in Newark, said its staff must be fully vaccinated in order to return to the office. “We made this decision for the safety and well-being of our employees, in accordance with all applicable laws and after carefully considering both the latest guidance from the Centers for Disease Control and Prevention and other health authorities,” said a Prudential spokesperson.

Employee rights

Timothy Ford, a partner at Einhorn, Barbarito, Frost & Botwinick, and member of the firm’s employment and litigation departments, pointed out that New Jersey law allows employers to mandate the COVID-19 vaccine and collect relevant data from their staff. But businesses need to securely store that data, not go beyond whether an individual got the vaccine, and make accommodations so that a worker who claims a religious or medical exemption is still able to participate in their job.

Gov. Phil Murphy signs legislation allocating $750 million in funding for eviction prevention assistance and utility assistance, joined by U.S. Rep. Albio Sires, Union City Mayor and Sen. Brian Stack, Assemblywoman Britnee Timberlake and Latino Action Network Housing Committee Chair Frank Argote-Freyre in Union City on Aug. 4, 2021.
Gov. Phil Murphy called out a group of anti-vaxxers while speaking at a press conference Aug. 4, 2021. – NJOIT/GOVERNOR’S OFFICE – NJOIT / GOVERNOR’S OFFICE

Nonetheless, most are taking a “wait and see approach,” he said back in July.

But Donald Scarinci, founder and managing partner of Scarinci Hollenbeck, said that he won’t get involved in people’s personal health decisions. “We don’t believe that an employer has the right to tell people what they could or could not do with their bodies. There’s a privacy issue here and we’re not going to mandate an injection [for our employees],” Scarinci said.

Mask rules might differ for vaccinated and unvaccinated staff when the firm’s offices reopen Sept. 9, but that could depend on what’s going on with the variants, he noted. Fewer employees will return to the office than before the pandemic as some moved to primarily remote work permanently. For those who do come in, the firm has adopted a liberalized “if you think you’re sick” sick policy and also added filters to its HVAC system to better circulate the air.

But Scarinci, a constitutional law expert, will stay away from mandates. “I think it’s going to be a litigated issue … a major legal issue in the future, which is why I’ve taken the position, I want no part of people’s personal health decisions,” he said. “But it could also be said [that] if you don’t mandate the injection, you’re subjecting others to a risk. I think it’s a weaker argument, though, than the sanctity of the person’s body.”

Labor unions in both the public and private sector are both pushing for greater employee input over mandates. Murphy’s vaccine mandate did not extend to state workers, most of whom are represented by the New Jersey chapter of the Communications Workers of America, a Murphy political ally. Nor did it extend to transit workers or teachers and other school employees, who are represented by the New Jersey Education Association, a powerful financial backer of the Murphy gubernatorial campaign. “We have been in communication with relevant stakeholders regarding our policy including our union partners across both the public and private sectors,” Murphy said on Aug. 3.

“We look forward to working with the Murphy Administration and having cooperative discussions to ensure public health, while also respecting bargaining,” CWA-NJ State Director Fran Ehret said in a statement to several news outlets. “The state colleges and universities have already proposed that workers – both CWA-represented and otherwise — be subject to mandatory vaccination. We’ve been reviewing that proposal internally already and look forward to bargaining with the state on it.”

Debbie White, president, HPAE.

In the health care sector, the vaccine mandate has led to some grumblings among workers. One official at the Health Professionals and Allied Employees nurse’s union noted that “the vaccine mandate is a new job condition,” meaning that “by law and our contracts, we have a right to discuss how that will affect our members.” Debbie White, a career nurse and head of HPAE, warned in a statement that “there are some for whom the vaccine is prohibitive.”

María Eugenia Lanao, a spokesperson for 32BJ SEUI, a union that represents thousands of service workers, wrote that “for those who choose not to get vaccinated, we are bargaining with our employers to ensure that their rights are respected.”

“There should be opportunities for them to be re-assigned to other worksites, or where that is not possible that the testing requirements are free, easily accessible, and on paid time,” she continued.