In October, Governor Murphy issued Executive Order 271 (the order), imposing a COVID-19 vaccine mandate on contractors who work on state projects. Specifically, the order requires that New Jersey state contractors who work “on or in connection with” New Jersey state government contracts enforce company-wide vaccination or weekly COVID-19 testing for all of their employees. This new vaccine mandate will be incorporated into new contracts and solicitations, though existing contracts will be impacted via requests for extensions or renewals.
Executive Order 271 is separate and apart from the OSHA Emergency Temporary Standards (ETS) and must be complied with regardless of the ETS status. How Will Executive Order 271 Be Iplemented?
The order mandates that the State of New Jersey and all state agencies and authorities include a clause in all contracts requiring a contractor and any of its subcontractors to maintain a vaccine policy. The mandate covers state-funded contracts 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.” The order applies to both new contracts and solicitations and any renewal or extension of a previous state contract. Under the order, the new contract provision applies to all full-time and part-time employees who work “on or in connection with” a covered contract that requires work on a state project or at a state facility.
How Will the Order Be Enforced?
Contractors must certify that they are compliant with the order at the time of bid or before executing a contract. Contractors must also certify compliance each time they submit an invoice or application for payment that will apply to the period of time covered by the invoice or application for payment.
Covered workers can establish their compliance by providing their employer with proof of their fully vaccinated status. This can include:
- Vaccine cards (including electronic or physical copies)
- Records from state immunization registries (or military immunization records)
- A health care provider’s records on official letterhead
- Mobile phone apps that produce a digital health record.
Unvaccinated workers must submit to weekly testing at least one to two times per week using an FDA-approved antigen or molecular test, including those approved by the FDA’s Emergency Use Authorization. The order obligates employers to develop a policy for tracking and reporting test results to local public health departments. Although the order is silent on religious and medical exemptions, employers must still comply with federal laws. For employee vaccination exemptions for sincerely held religious beliefs, employers are encouraged to obtain documentation from the employee’s religious leader confirming vaccination contravenes their religious beliefs or otherwise document the employees’ stated reason for the exemption. Similarly, for medical exemptions, employers are entitled to documentation from the employee’s healthcare provider that their medical condition prohibits vaccination.
When Will the Order be Effective?
The order was effective immediately. Though federal vaccine mandates and other state vaccine/testing mandates are facing court challenges, New Jersey’s mandate is not. So, any contractor bidding for or entering into a contract for New Jersey state work must comply. Owners, contractors, subcontractors, and other parties should review and update any vaccine/testing policies currently in place to ensure compliance with the order, and should work with counsel to draft and implement a policy if one does not exist. If you have any concerns about Executive Order 271, please contact the Cohen Seglias attorney with whom you work.
