N.J. Admin. Code § Executive Order No. 290 (2022)

Current through Register Vol. 57, No. 1, January 6, 2025

Section - Executive Order No. 290 (2022)

Governor Philip D. Murphy

Executive Order No. 290 (2022)

An Order Updating and Clarifying Timeframes for Requiring Covered Workers at Health Care Facilities and High-Risk Congregate Settings to be Up-To-Date with their COVID-19 Vaccinations, Including Having Received a Booster Shot

Issued: March 2, 2022.

Effective: March 2, 2022.

WHEREAS, on March 9, 2020, I issued Executive Order No. 103, declaring the existence of a Public Health Emergency, pursuant to the Emergency Health Powers Act ("EHPA"), N.J.S.A. 26:13-1 et seq., and a State of Emergency, pursuant to the New Jersey Civilian Defense and Disaster Control Act ("Disaster Control Act"), N.J.S.A. App. A:9-33 et seq., in the State of New Jersey for Coronavirus disease 2019 ("COVID-19"), the facts and circumstances of which are adopted by reference herein; and

WHEREAS, through Executive Order Nos. 119, 138, 151, 162, 171, 180, 186, 191, 200, 210, 215, 222, 231, 235, and 240, which were issued each month between April 7, 2020 and May 14, 2021, the facts and circumstances of which are adopted by reference herein, I declared that the COVID-19 Public Health Emergency in effect at the time continued to exist; and

WHEREAS, New Jersey made significant progress in responding to COVID-19 and mitigating its devastating effects, in particular in light of the advent of three effective vaccines that, among other things, had significantly reduced the likelihood of both contracting and transmitting the variants of COVID-19 that were present in the United States at the time; and

WHEREAS, on June 4, 2021, in light of these developments, I signed Assembly Bill No. 5820 into law as P.L. 2021, c. 103, and issued Executive Order No. 244, which terminated the Public Health Emergency declared in Executive Order No. 103 (2020); and

WHEREAS, P.L. 2021, c. 103 sought to enable the State to bring an end to its prior Public Health Emergency while still allowing for an orderly continuation of the Administration's ability to order certain public health measures relating to COVID-19, including but not limited to vaccine distribution, administration, and management, COVID-19 testing, health resource and personnel allocation, data collection, and implementation of recommendations of the Centers for Disease Control and Prevention ("CDC") to prevent or limit the transmission of COVID-19, including in specific settings; and

WHEREAS, P.L. 2021, c. 103 explicitly maintained the State of Emergency declared in Executive Order No. 103 (2020), and stated it would in no way diminish, limit, or impair the powers of the Governor to respond to any of the threats presented by COVID-19 pursuant to the Disaster Control Act; and

WHEREAS, in addition to leaving the prior State of Emergency in effect, nothing in P.L. 2021, c. 103 prevented the Governor from declaring any new public health emergency under the EHPA, N.J.S.A. 26:13-1 et seq., should the evolving circumstances on the ground require such a declaration; and

WHEREAS, on July 6, 2021, the U.S. Department of Justice, Office of Legal Counsel issued an opinion concluding that Section 564 of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 360bb b-3 does not prohibit public or private entities from imposing vaccination requirements while vaccinations are only available pursuant to Emergency Use Authorization (EUA); and

WHEREAS, on November 5, 2021, the federal Centers for Medicare & Medicaid Services ("CMS") issued the Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (CMS-3415-IFC) ("CMS Rule"), which was upheld by the United States Supreme Court on January 13, 2022, requiring most Medicare and Medicaid-certified providers' and suppliers' staff to be vaccinated against COVID-19 in order to participate in the Medicare and Medicaid programs; and

WHEREAS, on December 29, 2021, CMS issued guidance for the CMS Rule clarifying the timeframes for compliance and the enforcement actions to which facilities will be subject if their vaccination rates are less than 100 percent by the deadlines set forth therein and are therefore considered non-compliant; and

WHEREAS, on January 11, 2022, due to the surge of cases and hospitalizations tied to the new variants of COVID-19, I signed Executive Order No. 280, declaring the existence of a new Public Health Emergency, pursuant to the EHPA, N.J.S.A. 26:13-1 et seq., and continuing the State of Emergency declared in Executive Order No. 103 (2020) pursuant to the Disaster Control Act, N.J.S.A. App.A:9-33 et seq., in the State of New Jersey; and

WHEREAS, on January 19, 2022, I signed Executive Order No. 283, requiring all covered health care and high-risk congregate settings to maintain a policy that requires all covered workers to provide adequate proof to the health care and high-risk congregate settings that they are up to date with their COVID-19 vaccinations, including any booster shots for which they are eligible; and

WHEREAS, Executive Order No. 283 (2022) requires that covered health care settings subject to the CMS Rule maintain a policy requiring unvaccinated covered workers to obtain their first dose of the primary series of a COVID-19 vaccination by January 27, 2022 and that all covered workers must be up to date with their COVID-19 vaccination by February 28, 2022; including up to date with their booster dose by February 28, 2022 or within 3 weeks of becoming eligible for a booster dose, whichever is later; and

WHEREAS, Executive Order No. 283 (2022) requires that covered health care settings not subject to the CMS Rule and covered high-risk congregate settings maintain a policy requiring unvaccinated covered workers to obtain their first dose of the primary series of a COVID-19 vaccination by February 16, 2022 and that all covered workers must be up to date with their COVID-19 vaccination by March 30, 2022; including up to date with their booster dose by March 30, 2022 or within 3 weeks of becoming eligible for a booster dose, whichever is later; and

WHEREAS, on February 10, 2022, I signed Executive Order No. 288, which declared that the Public Health Emergency declared in Executive Order No. 280 (2022) continues to exist and that all Executive Orders issued, in whole or in part in response to the COVID-19 Public Health Emergency, including Executive Order No. 283 (2022), remain in full force and effect; and

WHEREAS, because vaccines are effective at preventing severe illness, hospitalizations, and death, including from the Omicron variant, the CDC has noted that the recent emergence of this variant emphasizes the importance of vaccination and boosters; and

WHEREAS, according to the CDC, studies show after getting the primary series of a COVID-19 vaccine, protection against the virus and the ability to prevent infection may decrease over time, in particularly due to changes in variants; and

WHEREAS, although the COVID-19 vaccines remain effective in preventing severe disease, recent data suggests their effectiveness at preventing infection or severe illness wanes over time; and

WHEREAS, the CDC has reported that vaccinated people who receive a COVID-19 booster are likely to have a stronger protection against contracting and transmitting COVID-19, particularly the Omicron variant, and stronger protection against serious illness, including hospitalizations and death; and

WHEREAS, the CDC has advised that expedient and additional public health action is necessary to prevent severe impacts on the health of individuals and the health care system due to the rapid spread of the Omicron variant; and

[page=510] WHEREAS, the CDC has confirmed that the rapid increase of infections is due to the increased transmissibility of the Omicron variant and its increased ability to evade immunity conferred by past infection or vaccination; and

WHEREAS, on February 22, 2022, the CDC updated their recommendations regarding the optimal interval between the first and second dose of an mRNA COVID-19 vaccination series; and

WHEREAS, the CDC recommends that some people aged 12 through 64 years, especially males aged 12 through 39 years, would benefit from getting their second mRNA vaccine dose eight weeks after receiving their first dose based on individual risk assessment; and

WHEREAS, it is necessary to modify the timeframes for compliance set forth in Executive Order No. 283 (2022) to allow covered workers additional time to determine the appropriate interval between receiving their first and second dose based on the CDC's recommendations; and

WHEREAS, the Constitution and statutes of the State of New Jersey, particularly the provisions of N.J.S.A. 26:13-1 et seq., N.J.S.A. App. A:9-33 et seq., N.J.S.A. 38A:3-6.1, and N.J.S.A. 38A:24 and all amendments and supplements thereto, confer upon the Governor of the State of New Jersey certain emergency powers, which I have invoked;

NOW, THEREFORE, I, PHILIP D. MURPHY, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the Statutes of this State, do hereby ORDER and DIRECT:

1. The timeframes set forth in Paragraph 1(b) of Executive Order No. 283 (2022) are hereby modified as follows: Covered health care settings subject to the CMS Rule must maintain a policy pursuant to Executive Order No. 283 (2022) that requires covered workers to provide adequate proof that they are up to date with their COVID-19 vaccinations according to the following schedule:

a. Unvaccinated covered workers must obtain their primary series of a COVID-19 vaccination pursuant to the timeframes set forth by CMS; and

b. All covered workers must provide adequate proof that they have received a booster dose by April 11, 2022, or within 3 weeks of becoming eligible for a booster dose, whichever is later.

2. The timeframes set forth in Paragraph 2(b) of Executive Order No. 283 (2022) are hereby modified as follows: Covered health care settings not subject to the CMS Rule and covered high-risk congregate settings must maintain a policy pursuant to Executive Order No. 283 (2022) that requires covered workers to provide adequate proof that they are up to date with their COVID-19 vaccinations according to the following schedule:

a. Unvaccinated covered workers must obtain their first dose of the primary series of a COVID-19 vaccination by February 16, 2022; and

b. All covered workers must provide adequate proof that they are up to date with their COVID-19 vaccination by May 11, 2022; provided however, that as to having received a booster dose, covered workers must provide adequate proof that they are up to date with their COVID-19 vaccinations by May 11, 2022, or within 3 weeks of becoming eligible for a booster dose, whichever is later.

3. A covered setting must take the first step toward bringing a noncompliant covered worker into compliance as part of the disciplinary policy required by paragraph 4 of Executive Order No. 283 (2022) within two weeks of the dates set forth in paragraphs 1(b) and 2(b) of this Order. Failure to take such action may result in penalties and other corrective actions allowed pursuant to federal or state regulation or statute.

4. The Commissioner of the Department of Health ("DOH") is hereby authorized to issue a directive supplementing the requirements outlined in this Order, which may include, but not be limited to, any requirements for reporting vaccination data to the DOH. Action taken by the Commissioner of DOH pursuant to this Order shall not be subject to the requirements of the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.

5. Paragraphs 1 and 2 of Executive Order No. 283 (2022) are hereby superseded to the extent they are inconsistent with this Order.

6. The State Director of Emergency Management, who is the Superintendent of State Police, shall have the discretion to make additions, amendments, clarifications, exceptions, and exclusions to the terms of this Order.

7. It shall be the duty of every person or entity in this State or doing business in this State and of the members of the governing body and every official, employee, or agent of every political subdivision in this State and of each member of all other governmental bodies, agencies, and authorities in this State of any nature whatsoever, to cooperate fully in all matters concerning this Order, and to cooperate fully with any Administrative Orders issued pursuant to this Order.

8. No municipality, county, or any other agency or political subdivision of this State shall enact or enforce any order, rule, regulation, ordinance, or resolution which will or might in any way conflict with any of the provisions of this Order, or which will or might in any way interfere with or impede its achievement.

9. Penalties for violations of this Order may be imposed under, among other statutes, N.J.S.A. App. A:9-49 and -50.

10. This Order shall take effect immediately and shall remain in effect until revoked or modified by the Governor.

N.J. Admin. Code Executive Order No. 290 (2022)

Published 3/2/2022 in the New Jersey Register at 54 N.J.R. 509(a).