“COVID-19 has now killed more than 900,000 and hospitalized about 4,000,000 Americans. See Nat'l Fed'n of Indep. Bus. v. Dep't of Labor, 142 S. Ct. 661, 670 (2022) (dissenting opinion). At least 75,000,000 Americans have been infected since the virus hit our shores. The fatalities include more than 31,000 New Jerseyans. Nearly 20% of all New Jerseyans have contracted COVID-19 during the pandemic's course and, because it is a circumstance of importance here, 54% of those incarcerated in New Jersey have contracted COVID-19. We need not recount the countless ways the virus has impacted New Jerseyans in their workplaces, schools, recreational areas, and homes. The virus has had a devastating and drastic impact on our economy and our way of life, N.J. Republican State Comm. v. Murphy, 243 N.J. 574, 580-81 (2020) (observing that "laypeople, scientists, and legal scholars alike would agree that COVID-19 is a true disaster with widespread consequences"), as recognized in the emergency declarations issued by President Joseph R. Biden, Governor Philip D. Murphy, and our Chief Justice, that we alluded to in recently upholding Newark's imposition of a vaccination mandate for its employees. See In re City of Newark, 469 N.J. Super. 366, 387-89 (App. Div. 2021).
“The order requires covered workers – absent the approval of an application for an exemption – to obtain their "first dose of the primary series" of a vaccine by February 16, 2022, and to submit proof 'that they are up to date with their COVID-19 vaccinations by March 30, 2022, or within 3 weeks of becoming eligible for a booster dose, whichever is later.' The order also requires "covered settings" to establish a disciplinary process for non-compliance that may include termination from employment
“Executive Order 283 also requires ‘covered settings’ to continue mandating regular testing for workers already subject to testing under Executive Order 252 until the submission of sufficient proof of vaccination. Executive Order 283 does not mandate testing after proof of vaccination is submitted, but it does not foreclose it. The order states that of the many driving forces behind these requirements was the desire to raise the protective floor through vaccinations for ‘congregate and health care settings because of the significant risk of spread and vulnerability of the populations served.’
“Executive Order 283 represents a rational and measured response to our present circumstances. Appellants' arguments to the contrary are without merit.
“To summarize, we conclude that the Governor was fully empowered under the Disaster Control Act to enter Executive Order 283. To the extent necessary to our decision, we find the executive order was authorized by the Emergency Health Act. We also have no hesitancy in concluding that Executive Order 283– as it applies to appellants – is rationally tailored to the problem recognized by the Governor. And we are satisfied that the individual rights asserted by appellants are of minimal weight when compared to the greater good that Executive Order 283 seeks to foster and establish. See We The Patriots, 17 F. 4th at 293 n.35 (recognizing that "urgent public health needs of the community can outweigh the rights of an individual to refuse vaccination").
“In the final analysis, there are times when individual self-interests like those asserted by appellants must take a backseat to the responsibilities we all have toward each other, a point President Kennedy far more eloquently expressed in his 1961 inaugural address.
NEW JERSEY STATE POLICEMEN'S BENEVOLENT ASSOCIATION VS. PHILIP D. MURPHY, ETC. NEW JERSEY SUPERIOR OFFICERS LAW ENFORCEMENT ASSOCIATION VS. PHILIP D. MURPHY, ETC. (EXECUTIVE ORDER NO. 283) (CONSOLIDATED), A-1525-21/A-1548-21, Feb. 11. 2022
By Jon L. Gelman
Courtesy of Workers' Compensation
