What Happened?

On September 9, 2021, President Biden issued an Executive Order requiring employees of federal contractors and subcontractors to get vaccinated against COVID-19.  As part of the Administration’s effort to get as many individuals as possible vaccinated, the Executive Order is broadly drafted to require nearly every employee of businesses contracting with the federal government to be vaccinated or risk losing their federal contracts.  The Order directs the Safer Federal Workforce Task Force (“Task Force”) to issue guidance (the “Guidance”), which was released on September 24, 2021, to implement the Order.  On September 30, the Federal Acquisition Regulatory Council issued a contract clause requiring contractors and subcontractors at any tier to comply with the guidance published by the Task Force and recommended that federal agency acquisition offices exercise their authority to develop Federal Acquisition Regulation (“FAR”) deviation clauses implementing the Task Force’s guidance.  With the release of the Guidance and contract clause, employers must immediately be prepared to implement and comply with these requirements.

Why it Matters?

The Guidance applies to any contract or contract-like instrument with a federal agency or department (“covered contract”) and covers a prime contractor or subcontractor at any tier who is a party to a covered contract (“covered contractor”).  In turn, a “covered contractor employee” is any employee of a covered contractor working on or in connection with a covered contract.  The “in connection with” language is purposely broad and includes employees who are indirectly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review.

Covered contractor employees must be vaccinated no later than December 8, 2021 or by the first day of performance of a covered contract, option exercise, or renewed contract when a clause requiring compliance with the Guidance has been incorporated into a contract.

There are certain exceptions to the Guidance. The two most significant exceptions are contracts below the Simplified Acquisition Threshold, currently set at $250,000, and contracts or subcontracts for the manufacturing of products or for supplies.  However, the Guidance expressly states that in such contracts the contracting agency is “strongly encouraged” to include the contract clause implementing the Guidance and the discretion to do so rests entirely with the contracting agency.  This unilateral discretion and the clear aim of the Guidance, makes it highly likely that even these generally-exempted contracts will still require compliance with the Guidance.

Acceptable proof of fully vaccinated status is limited to digital or hard copies of an immunization record from a healthcare provider or pharmacy, a COVID-19 Vaccination Record Card, medical records documenting the vaccination, immunization records from a public health or state immunization information system, or other official documentation detailing the type of vaccine administered, date(s) of administration, and the name of the healthcare professional or clinic site that administered the vaccine.  An employee’s attestation of vaccination, proof of prior infection, or an antibody test are not sufficient proof of vaccination.

Although there is no testing alternative in the Guidance, employees may still seek an accommodation based on a disability and/or medical condition or a sincerely held religious belief.  Employers should maintain and engage in their usual interactive process and reasonable accommodation procedures when faced with such a request and should, ideally, involve employment counsel.

Finally, and in addition to the vaccine requirements, the Guidance also requires that covered contractors ensure that all individuals, including covered employees and visitors, comply with published CDC guidance for masking and social distancing at covered contractor workplaces.

What you Should do Now?

Covered contractors should designate their COVID-19 workplace safety monitor and continually check for updated guidance, FAQs and contract clauses released by the Task Force.  Employers should then evaluate their worksites and operations to determine which workplaces and employees are covered by the Guidance and implement policies and procedures to ensure their compliance. All compliance efforts should be documented and done in conjunction with experienced employment counsel.  HLS’s Employment Practice Group has extensive experience in assisting government contractors prepare for and comply with the Guidance and upcoming enforcement.

What Happened?

On October 20, 2021, Governor Murphy issued Executive Order No. 271 requiring that new state contracts, solicitations for contracts, extensions or renewals of existing contracts, and options on existing contracts contain a clause mandating the contracting employer to implement a vaccine-or-testing policy.  The required policy would apply to any employees of the contracting employer who enter, work at, or provide services in any state agency location.  Executive Order No. 271 expands upon Governor Murphy’s previous Order requiring all state employees be fully vaccinated and is another step towards the objective of getting as many individuals vaccinated as possible.  The Order is drafted and to be implemented broadly and is immediately effective.

Why it Matters?

The Order requires that each executive department and agency including independent authorities ensure that contracts or agreements entered into by the executive department or agency include a clause that the contractor or subcontractors, at any tier, must maintain a policy requiring all covered workers to either provide proof of fully vaccinated status or submit to COVID-19 testing at minimum one to two times per week.  The Order applies to any new contract, new solicitation for a contract, extension or renewal of an existing contract, and exercise of an option on an existing contract, if it is a contract for services, construction, including demolition, remediation, removal of hazardous substances, alteration, custom fabrication, repair work, or maintenance work, or a leasehold interest in real property through which covered workers have access to State property, and the cost or contract price thereof is to be paid, in whole or in part, with or out of executive department or agency funds.

Pursuant to the Order, “covered workers” include employees of a covered contractor working on or in connection with a contract with an executive department or agency that requires the worker enter, work at, or provide services in any place, site, installation, building, room, or facility in which any executive department or agency conducts official business or is within an executive department or agency’s jurisdiction, custody, or control, or that relates to offering services for State employees, their dependents, or the general public.

To satisfy the testing alternative, a covered worker must undergo screening testing at minimum one to two times weekly. Where a covered contractor requires an unvaccinated covered worker to submit proof of a COVID-19 test, the worker may choose either antigen or molecular tests that have EUA by the U.S. Food and Drug Administration (“FDA”) or are operating per the Laboratory Developed Test requirements by the U.S. Centers for Medicare and Medicaid Services.  If the covered contractor provides onsite testing, either antigen or molecular testing may be used, and testing is not required for a covered employee not working on-site during a particular week.

Adequate proof of full vaccinated status includes: (a) CDC COVID-19 Vaccination Cards; (b) official record from the New Jersey Immunization Information System (NJIIS) or other State immunization registry; (c) a record from a health care provider’s medical record system on official letterhead signed by a licensed physician, nurse practitioner, physician’s assistant, registered nurse or pharmacist; or (d) military immunization or health record from the United States Armed Forces; or Docket mobile phone application record or any state specific application that produces a digital health record.

What Should you do now?

Because the Executive Order provides a testing alternative, it is effective immediately and does not include a compliance period.  Employers who directly contract with the state need to immediately review their policies and either amend existing policies or adopt a new policy requiring employees working on or in connection with those contracts to be fully vaccinated or submit to weekly testing.  Employers who are not direct contractors should review their operations to determine if they are a subcontractor of the state and adopt or amend their policies accordingly. Given the policy aim behind the Order and the wide application, employers should broadly apply the Order’s requirements in both their policies and their actions.

Failure to abide by the Order constitutes disorderly conduct and the penalties can include monetary fines and imprisonment.  It is also possible that a business failing to follow the Order will jeopardize their existing and future contracts with the state.  Employers should work with experienced employment counsel to ensure their policies and practices are compliant with the Order.

HLS’s Employment Practice Group regularly advises businesses on compliance with ever-changing COVID regulations and guidance and can help employers avoid costly penalties while preserving business operations.

What Happened?

The New Jersey Supreme Court’s decision in Rios v. Meda Pharmaceutical, Inc. reverses dismissal of NJLAD complaint by the trial court and Appellate Division, and allows the Plaintiff employee to take his case to a jury.

Rios, a Hispanic employee, complained of national origin and racial discrimination by his supervisor.  Shortly after he was hired, in July 2015, Rios’ supervisor uttered two racial slurs.  The Supervisor denied the allegations. Rios said he reported the incident to HR.  There was no documentation in the file, and the HR manager was deceased and not deposed.

Eleven months later, Rios was fired in June 2016, after being placed on a PIP and having negative written assessments.  Rios sued Meda Pharmaceutical under the NJLAD alleging hostile work environment and other claims.

The trial court and Appellate Division dismissed the case on summary judgment and found that the Rios could not sustain his case.

The Supreme Court reversed.  The Supreme Court held that two racial slurs allegedly said by a supervisor were severe and pervasive enough for a hostile work environment claim even though there was no corroborating evidence.

Why you need to know about this?

The Supreme Court allowed a hostile work environment claim to go to a jury based on the employee’s allegations alone.  There was no corroborating evidence of the racial slurs nor the employee’s complaints.  This is significant because it will be more likely that former employees will get their case to a jury based on the employee’s testimony alone.

What should you do now?

Employers should take proactive steps to protect against liability.  First and foremost, employers should train managers on the conduct and communication policies and implement regular training to reduce the likelihood of improper conduct by supervisors.  The fact that it was a supervisor in Rios who uttered the racial slur was significant to the Supreme Court’s analysis.

Employers should also document all complaints and maintain written records of remedial steps.  There was no record of the complaint or any remedial action taken by the employer in Rios and that was persuasive to the Supreme Court in permitting the case to go a jury.  Make sure all complaints made to HR are documented in the file.

Finally, strong policies are necessary.  This decision makes clear that racial slurs have no place in the workplace and company policies should strongly prohibit such conduct.

Please feel free to contact Megan Knowlton Balne of Hyland Levin Shapiro’s employment practice group to answer any questions you may have.  Megan can be reached by email at balne@hylandlevin.com or by phone at 856.355.2936.

Hyland Levin Shapiro LLP is pleased to announce that partner, Megan Knowlton Balne, has been elected to serve as Secretary of the Burlington County Bar Association.  The BCBA was founded in 1932, and continues to bring the legal professionals in Burlington County together through continuing legal education programs, events and bench bar conferences. Balne has served as a Trustee for the BCBA for the past three years and has chaired the Business Corporate Law Subcommittee, and has served as a speaker and moderator for CLE courses on employment law and women’s history.  “I’m very much looking forward to serving BCBA as an officer, and I am thrilled to continue to work with my colleagues to increase engagement and continue the great work of the bar association,”  Balne explains.  Megan will be sworn in June 3 at the Annual Installation Dinner.

Megan leads the Employment Law Group at Hyland Levin Shapiro LLP, and devotes her practice to helping businesses stay compliant and grow sustainably.  Megan is a graduate of Rutgers University School of Law-Camden (J.D., magna cum laude, 2010) and Ramapo College (B.A. summa cum laude, 2007).  In 2019, Megan received the New Jersey State Bar Association Professional Achievement Award, and in 2020, Megan was recognized as a 40 Under 40 Award Recipient by NJ Biz.  Most recently, Megan was recognized by South Jersey Biz in its “2021 Women to Watch” feature.

Megan can be reached at balne@hylandlevin.com or (856) 355-2936.

Hyland Levin Shapiro LLP partner, Megan Knowlton Balne, has been selected as one of this year’s Women to Watch and is featured in this month’s issue of South Jersey Biz.

South Jersey Biz has recognized 20 influential business leaders in the South Jersey area who “impress with their credentials and inspire with their leadership.”  Balne was highlighted for her leadership of Hyland Levin Shapiro’s Employment Practice Group, as well as for her service as Chair of the Legal and Legislative Committee for the Human Resource Association of Southern New Jersey and a member of the Board of The South Jersey Chapter of the National Association of Women Business Owners (NAWBO).

“It is truly an honor to be recognized as an influential woman in business, along with 19 other incredible women who are leaders in their field,” Balne says. To read more, go to South Jersey Biz at https://www.southjerseybiz.net/.

Megan leads the Employment Law Group at Hyland Levin Shapiro LLP, and devotes her practice to helping businesses stay compliant and grow sustainably.  Megan is a graduate of Rutgers University School of Law-Camden (J.D., magna cum laude, 2010) and Ramapo College (B.A. summa cum laude, 2007).  In 2019, Megan received the New Jersey State Bar Association Professional Achievement Award, and in 2020, Megan was recognized as a 40 Under 40 Award Recipient by NJ Biz.

Megan can be reached at balne@hylandlevin.com or (856) 355-2936.