Under a newly signed executive order in New Jersey, all state contractors and subcontractors entering agreements with the state must include a clause that requires all covered workers to either provide adequate proof to the contractor that they are fully vaccinated or submit to at least weekly COVID-19 testing.
On October 20, 2021, New Jersey Governor Phil Murphy signed Executive Order No. 271 (the Order), effective immediately, requiring state contractors to maintain a policy that requires all workers, including subcontractors, to either provide adequate proof to the contractor that they have been fully vaccinated or submit to COVID-19 testing at a minimum of one to two times weekly. The Order is in some ways similar to Federal Executive Order 14042 (described in a prior LawFlash) and specifically states that its purpose is to ensure the safety of the government workforce and public by “requiring contractors to provide their vaccination or testing status as a condition of entry onto State property and into State facilities.” The preamble to the Order further explains that ensuring state contractors “provide adequate COVID-19 safeguards to their workers performing on or in connection with a State government contract will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at sites where they are performing work for the State.”
The Order applies to potential state contractors seeking a new contract, an extension, a renewal of an existing contract, or exercise of an option on an existing covered contract. Contracts are covered if they provide 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 the contractor’s workers have access.
The Order exempts from coverage: (1) contracts solely for the provision of goods; (2) financial assistance contracts, including but not limited to grants, bonds, loans, or tax credits; (3) contracts or subcontracts whose value is less than the state bid advertising threshold; and (4) employees who perform work outside of New Jersey.
The Order requires potential state contractors to perform the following:
In addition, potential state contractors seeking a new contractor must be able to certify to compliance when submitting a bid or proposal or prior to executing an extension on a current contract. If awarded a contract, the contractor must also comply with the Order by having the policies and practices required by the Order in place and must collect all data necessary for compliance. Finally, contractors will need to certify, at the time of submission of an invoice, that they have complied with the Order during the period covered by the invoice.
The Order also sets forth obligations for workers. The Order applies to workers who “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.” Workers can be compliant with the potential state contractor’s policy by providing proof of vaccination or proof of weekly testing to the contractor.
The Order provides that workers can provide proof of full vaccination by presenting the following documents to the contractor, if they document those COVID-19 vaccines currently authorized for emergency use in the United States or by the World Health Organization, along with an administration date for each dose:
Workers who cannot provide proof of their full vaccination status must undergo testing at least once a week to satisfy the testing requirement.
To comply with the Order, contractors considering a new contract, new solicitation for a contract, extension or renewal of an existing contract, or exercise of an option on an existing contract, should implement a policy for the vaccination and testing of workers, a procedure to comply with all federal and state laws that regulate the collection and storage of vaccination information, and establish or maintain a policy for tracking test results for reporting to local public health departments, as needed.
The Order does not prohibit companies from having a policy that requires testing more than once per week or a specific vaccination requirement without a testing option.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
New York
David A. McManus
Daniel A. Kadish
Orange County
Daryl S. Landy
Philadelphia
A. Klair Fitzpatrick
Princeton
August W. Heckman III
Michelle Seldin Silverman
Washington, DC
Sharon P. Masling