I have been asked many times by clients if they need to give employees paid time off in order to get the vaccine. I tell them (in New Jersey) that they are not compelled to do so, but it is a good idea. Some States have gone farther than just suggesting it is a “good idea” and have issued laws or Orders mandating such paid time off. For example, on March 12, 2021, the Governor of New York signed a law requiring all New York employers, without regard for the size, business or industry, to give employees paid vaccination leave, to a maximum of four hours per injection, effective immediately.
The law requires that private employers provide a “sufficient period of time,” which could be as much as four hours, for the employee to be injected. The payment must be at the worker’s regular rate of pay. Significantly, employers are not permitted to charge this paid time to any other type of leave that the employee may otherwise be entitled to, such as paid sick leave or vacation time. Naturally, the law does not allow an employer to discriminate or retaliate against any employee who takes or wants to take this vaccination leave.
The law sunsets on December 31, 2022. It does not mention whether it is retroactive, i.e. whether employees can seek payment for their vaccination time before the law’s effective date. The law is also unclear on whether employers can demand proof of vaccination or what documentation, e.g., vaccination card, is acceptable.
Similarly, the Illinois Department of Labor has just issued guidance on this as well. The DOL stated that an employer who requires employees to get vaccinated would likely have to pay for this time, even if it occurs outside normal working hours. If employees get vaccinated voluntarily, the guidance suggests employers allow them to take paid leave that they may have available. The guidance also states that employees may be able to use paid sick leave (under the Illinois law) to take their relatives to get the shots.
There is another looming issue. It is likely that, in time, employers will be allowed to provide vaccinations on their premises, during working hours. Naturally, the time employees spend waiting on line and getting the shot would most likely be deemed working time, especially (and obviously) if the employer mandates vaccinations.
This is the flip side of whether employers have to pay employees for time waiting to get their temperatures checked before entering the workplace. Besides New York or Illinois, it is a decent bet that if employers are compelling the vaccinations before a return to work, the time is compensable or employers should/must provide paid time off.
It’s money well spent…