New Jersey long-term care workers could soon be mandated to receive COVID-19 vaccines under a directive from the state’s top official. 

Gov. Phil Murphy (D) is considering the option in an effort to boost vaccination rates among the group, which stands at about 58.5% — well below the 84% uptake among nursing home residents in the state. 

The governor hinted at the option late last week, according to a report by While he said his personal preference would be for nursing home workers to get vaccinated voluntarily, he added that “at a certain point, our patience runs thin on that.”

Murphy may have the executive powers to mandate healthcare worker vaccines under a 14-month public health emergency declaration issued for the pandemic. But some observers  have suggested such a move would require action from the state legislature. 

James McCracken, president and CEO of LeadingAge NJ and Delaware, said several members in the state’s legislature have assured him they would not consider legislation mandating healthcare staff get vaccinated for COVID-19 until the vaccine has full approval. All three U.S. vaccines are currently approved for emergency use authorization, but Pfizer has started its application for outright authorization.

“In the meantime, our members have been working hard to educate the staff on the benefits of becoming vaccinated,” he told McKnight’s Long-Term Care News on Tuesday. “If ever mandated, we believe it should apply to all healthcare settings and not just long-term care.

Andy Aronson, president and CEO of the Health Care Association of New Jersey, added that a vaccine mandate that only applies to long-term care workers would be “harmful” to the industry and would hurt residents by “pushing workers away from long-term care and toward other provider types.” 

“To lose even a small percentage of our workers in this way would exacerbate staffing shortages that already exist in long-term care,” he said in a statement to McKnight’s

The Equal Employment Opportunity Commission in December issued guidance that stated employers can require proof of COVID-19 vaccinations from employees, with exemptions for medical or religious accommodations. The guidance, however, was unclear about where mandatory vaccination policies fall if the approval is under emergency use authorization.

Jennifer Curry, shareholder and vice chair of the labor and employment group at Tennessee-based law firm Baker Donelson

“I think it’d be a pretty hard argument to make [against] if the employer relied on [the EEOC guidance] in issuing a vaccine mandate,” said Jennifer Curry, shareholder and vice chair of the labor and employment group at Tennessee-based law firm Baker Donelson. 

“It’d be a pretty hard argument to make that it was unfair or unlawful for the employer to then rely on that guidance.”

Curry added that if New Jersey does push ahead with the mandate, it’s more likely it could face wrongful termination claims, as a matter of public policy, which could also be a challenge for workers.

“There’s perhaps the potential for that, but again an employee would have to prove that there’s some public policy out there, under state law or regulation, that would say it’s against state public policy to mandate the vaccine, and I don’t think that exists out there right now,” Curry told McKnight’s

“There are some laws that are proposed right now in state legislatures that would ban mandating the vaccine, but none of that has passed yet,” she added.