By Vin Gurrieri

Law360 (March 25, 2021, 5:02 PM EDT) -- New Jersey employers can make employees get inoculated against COVID-19 before setting foot on a worksite provided they allow certain exemptions, the state said in recent guidance that lays out a legal road map for businesses that want to adopt a mandatory vaccination policy.

While businesses have the green light to impose a vaccine mandate on their workforce, they must leave room for workers to get a pass under certain circumstances. Those include when someone is precluded from getting the shot because of a disability or religious belief, or when women are advised by their doctors not to get the shot because they are pregnant or breastfeeding, the state said in an FAQ document posted to the state's online coronavirus hub March 19. 

When those circumstances arise, employers must provide those workers with a reasonable accommodation unless doing so places an "undue burden" on the businesses' operations, the state government said. If employers can't offer an accommodation that adequately diminishes the risk of COVID-19 spread among workers or customers, they can legally bar unvaccinated workers from a workplace, even those who have medical or religious reasons for not getting inoculated, according to the state. 

"However, that does not mean that your employer can automatically discipline you if you cannot get vaccinated, as the employer may be precluded from doing so by other laws, regulations or policies," the state cautioned in its guidance. 

The Garden State offered some possible options for accommodations that employers may consider for workers who can't get the vaccine. They include letting a person continue working remotely or outfitting them with personal protective gear that "sufficiently mitigates" any danger of virus transmission or exposure.

"Safety — your safety as well as the safety of your co-workers, clients and customers — is a factor in evaluating whether a potential accommodation would be reasonable," the state said in its guidance, which is directed at employees. It noted that employers must root any decisions about potential safety hazards "on objective, scientific evidence" that can include guidance from the Centers for Disease Control and Prevention and "not on unfounded assumptions or stereotypes."

The state in its FAQ also delved into details of how employers should approach instances in which vaccine policy exceptions should be made on medical or religious grounds.

It said employers have the state's blessing to "generally request" medical paperwork to confirm that a person has a disability or that a pregnant or breastfeeding worker received a doctor's recommendation to stay away from the shot. But when they do, employers have to make sure that any documentation they get is kept under wraps in a "confidential medical record," the state said.

In the case of a religious objection to the vaccine, the state said employers "generally may not question the sincerity" of a person's religious beliefs or practices. But they can call the sincerity of those beliefs into question if employers have "an objective basis" for doing so.

"In that case, the employer may make a limited inquiry into the facts and circumstances supporting the employee's request," the state said in its guidance.

New Jersey's guidance generally tracks guidance issued in December by the U.S. Equal Employment Opportunity Commission, which enforces numerous federal anti-discrimination laws, including Title VII of the Civil Rights Act and the Americans with Disabilities Act .

The EEOC's guidance laid out the legal framework under those statutes for how businesses that adopt a vaccine requirement should approach situations in which a worker can't receive the shot because of an underlying disability or because of their religious beliefs. The agency said in part that businesses must strive to first provide those individuals with a reasonable accommodation or exempt them from the vaccination requirement altogether.

If that's not possible, those employees can be blocked from coming to work but can't "automatically" be terminated, according to the commission's December guidance, which advised employers to instead take the full range of civil rights laws into account when considering such actions.

Meanwhile, Rutgers University said Thursday that it will require students who plan to attend this year's fall term to receive the vaccine, with exemptions available for medical and religious reasons. The policy won't apply to students whose programs are fully virtual or who don't need access to on-campus facilities. Rutgers, which is the state university of New Jersey, also said in its announcement that it continues to "strongly urge" faculty and staff to be immunized as soon as is practicable.

--Editing by Neil Cohen.

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