With COVID-19 vaccines becoming more accessible throughout the United States, but vaccination opportunities often limited to "business" hours, employers are experiencing an increase in requests for time off from work to obtain a vaccine, in some instances on short notice. To shine a light on this issue and help employers understand their legal obligations, below we inject into the COVID-19 vaccination conversation information concerning paid time off requirements.
- Emergency (COVID) Paid Sick Leave Laws: Some jurisdictions enacted pandemic-specific laws that allow employees to use job-protected paid leave for various reasons associated with COVID-19. As the COVID-19 situation evolves, so do these laws. In 2021, California and Philadelphia implemented laws that require employers with at least 26 or 50 employees, respectively, to provide paid leave - generally, in addition to what existing laws or employer policies may already provide - that employees can use to obtain COVID-19 vaccinations or recover from their side effects. Massachusetts is proposing a similar requirement for all employers. At the federal level, the American Rescue Plan Act of 2021 (ARPA) extends federal tax credits for private employers with 499 or fewer U.S. employees that voluntarily provide emergency paid leave that employees can use for these purposes.
- General (Non-COVID) Paid Leave Laws: Numerous cities, counties, and states across the country have laws that pre-date COVID-19 and require employers to provide job-protected paid leave employees can use for a "sick," "safe," or, in some places, "any" reason. All these paid sick leave laws allow employees to use leave for preventive care, both for themselves and to care for or assist family members (or, in certain jurisdictions, non-family members). Preventive care typically would be interpreted to include vaccinations. And, in fact, enforcement agency guidance from California, Massachusetts, Nevada, New Jersey, and Oregon explicitly confirms employees can use this leave for vaccination-related purposes, as does recent guidance from Colorado, which has both a paid sick and safe leave law, currently applicable to employers with at least 16 employees only, and a permanent public health emergency leave law applicable to all employers, that allows leave for preventive care purposes.
- Standalone Paid Vaccination Leave Laws: To date, only New York State has a law with the singular purpose of requiring all employers to provide up to four hours of paid leave per COVID-19 vaccine injection, in addition to other paid leave benefits they must provide per the statewide (or New York City) paid sick and safe leave law, the statewide COVID-19 paid quarantine or isolation leave law, or their existing paid leave policies. Employers that are parties to a collective bargaining agreement (CBA) may provide a greater number of paid hours to be vaccinated, and private employers also may waive the requirements of this law through the terms of a CBA, provided that the agreement's language expressly waives the law.
- "Hero" Pay Laws with Paid Vaccination Leave: Recently, there has been a noticeable uptick, mostly at the local level, in laws requiring certain grocery and retail employers to provide "hero" or "hazard" premium pay to certain employees during the pandemic. Though they focus primarily on wage and hour, some of these laws have a paid vaccination leave requirement. For example, in California, ordinances in Daly City, Millbrae, and San Mateo require employers to provide up to four hours of paid leave to attend COVID-19 vaccination appointments, and in South San Francisco employers must provide paid leave at the hazard pay rate (an additional $5 per hour) in an amount sufficient to obtain vaccination, but not more than four hours.
- Kin Care Laws: A few state laws require that, if an employer offers employees paid leave they can use for certain reasons (normally sickness and medical care), they must allow employees to use a certain amount of that leave to care for or assist a family member. As state labor department guidance from Illinois highlights, these "kin care" laws might cover time spent helping a family member obtain a COVID-19 vaccination.
- Wage & Hour Laws: Independent of a law requiring or allowing employees to use paid time off, the specific facts and circumstances surrounding vaccinations will determine whether time spent traveling to and from an appointment, and waiting for and receiving a COVID-19 vaccination, counts as "hours worked" for minimum wage and overtime purposes and must be paid. These factors include, e.g., whether the employer requires employees to get vaccinated and whether the vaccination takes place on company property or during work hours. Various state labor departments have published guidance on this issue, including, e.g., California, Illinois, Massachusetts, and Oregon. At least in some states, if the employer requires an employee to get vaccinated, the time the employee spends obtaining the vaccine could be considered compensable hours worked under state law, even if vaccination occurs outside of work hours and off company property.
- It Pays to Consider Other Potential Laws: Even if a law does not require employees to receive pay for time spent obtaining a vaccination, employers are not immune from a host of compliance challenges under other potentially applicable laws. For example, though mainly a local issue, employers might need to examine flexible working arrangements for employees with COVID-19 vaccination appointments under pre-COVID "predictive scheduling" or "fair workweek" laws, "family friendly" ordinances, or other more general "scheduling-related" laws, or industry- and COVID-specific local laws with a scheduling component. Additionally, employers must be mindful of potential unpaid leave obligations under disability accommodation and family-medical leave laws for employees required or requested to work on-site who have health conditions that make them "high risk" for severe illness related to COVID-19 (the vaccination would mitigate their risk of severe illness). Finally, if employers are considering providing payment to encourage employees to get vaccinated, be aware that certain states may view these incentives as violating equal pay or fair employment practices laws, as Oregon state labor department guidance demonstrates.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.