HR Newsletter

With COVID-19 vaccines becoming more widely available in the United States, many employers have questions about their rights and obligations. Both federal and state authorities have begun to issue guidance and rules regarding the vaccine and its relation to nondiscrimination, paid leave, and other workplace issues.

Recent state developments

California:

DFEH guidance:

On March 4, 2021, the California Department of Fair Employment and Housing (DFEH) published new guidance addressing vaccination policies and practices. The DFEH did not provide guidance on whether, or to what extent, an employer should mandate vaccination within its workforce. Rather, the guidance addresses how to comply with the state's nondiscrimination law if you decide to require employees to be vaccinated.

In short, the DFEH says that an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection as long as the employer:

• Does not discriminate against or harass employees or job applicants on the basis of a protected characteristic;
• Provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices; and
• Does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

DIR guidance:

The Department of Industrial Relations (DIR) has also released guidance regarding vaccination and whether employees are entitled to pay for the time they spend obtaining the vaccine.

Paid leave for COVID-19 vaccine:

Also keep in mind that under the state's new COVID-19 Supplemental Paid Sick Leave law, one of the permitted reasons employees may use such paid leave is to attend an appointment to receive a COVID-19 vaccine. This paid leave requirement applies to employers with more than 25 employees regardless of whether they have a voluntary or mandatory vaccination program. Some local jurisdictions in the state have paid leave requirements that would apply to vaccinations as well, many of which cover smaller employers.

Illinois guidance:

The Illinois Department of Labor (IDOL) recently published guidance on providing employees pay, leave, and flexibility so they can get the COVID-19 vaccination. In the guidance, the IDOL says that when employers require employees to get vaccinated, the time employees spend meeting the requirement generally must be paid, even if it occurs during non-work hours (this is true under federal law as well). The IDOL says mandatory vaccination requirements should be combined with paid leave for employees to receive the COVID-19 vaccine, or the employer should otherwise provide compensation for the time taken by the employee to comply with an employer-mandated vaccine requirement.

The guidance also addresses when employees need time off to bring a family member to get vaccinated. Under the Illinois Employee Sick Leave Act (ESLA) requires employers to allow their employees to use employer-provided sick leave benefits for absences due to, among other things, medical appointments of the employee's family member. The leave must be provided on the same terms upon which the employee is able to use personal sick leave benefits for their own illness or injury. An appointment to receive the COVID-19 vaccine would qualify as a permissible medical appointment for purposes of the ESLA if the employer allows the use of an employee's sick leave benefits for purposes of vaccinations, according to the IDOL. Therefore, you should allow the employee to use sick leave benefits when taking a covered family member to receive the COVID-19 vaccine.

New Jersey guidance:

The New Jersey Department of Labor (NJDOL) has released guidance clarifying the circumstances in which employers may require their employees to receive the COVID-19 vaccination prior to returning to work.

The guidance says employers may require that their employees receive COVID-19 vaccinations to return to the workplace, except under the following circumstances:

• The employee has a disability or a sincerely held religious belief, practice, or observance that precludes them being vaccinated; or
• The employee's physician has advised otherwise due to pregnancy, or need to breastfeed.

An employer must provide a reasonable accommodation from a mandatory vaccine policy for any of the reasons listed above unless doing so would impose an undue burden on their operations. Reasonable accommodation may include:

• Allowing an employee to continue to work remotely or otherwise work in a manner that would reduce or eliminate the risk of harm to other employees or the public; or
• Providing an employee with personal protective equipment that sufficiently mitigates the employee's risk of COVID-19 transmission and exposure.

New York paid leave for COVID-19 vaccine:

In March 2021, the state of New York enacted a law that entitles employees to paid time off to receive the COVID-19 vaccination. The law took effect immediately and is set to expire on December 31, 2022. New York employees are entitled to up to four hours of paid leave per injection. Employers must provide the leave at the employee's regular rate of pay, and cannot deduct this leave from any other earned or accrued time.

Since the start of the pandemic, the state of New York has enacted a general paid sick leave law, a COVID-19 leave law, and now a COVID-19 vaccination leave law. New York employers should ensure compliance with all three.

Frequently asked questions:

Here are the answers to some recent frequently asked questions concerning COVID-19 vaccination. We also address vaccination questions in our COVID-19 Resource Center here.

Q: If an employee receives the COVID-19 vaccine, are there different return-to-work guidelines if they have symptoms or are in close contact with a positive case?

A: Check the applicable quarantine orders and guidance and contact your local health department to determine the return-to-work requirements in such cases. Many jurisdictions have updated their quarantine guidance and rules in light of the availability of the COVID-19 vaccine. These rules and guidelines may differ depending on the length of time that has passed since they have been vaccinated and whether they're experiencing any symptoms.

Note: Vaccinated individuals should continue to follow current guidance to protect themselves and others, including wearing a mask, staying at least six feet away from others, avoiding crowds, avoiding poorly ventilated spaces, covering coughs and sneezes, and washing hands often.

Q: Can you ask an applicant or employee whether they have gotten the COVID-19 vaccine?

A: Under the federal Americans with Disabilities Act (ADA) there are restrictions on when and how much medical information an employer may obtain from any applicant or employee. For example, prior to making a conditional job offer to an applicant, the ADA generally prohibits disability-related inquiries and medical exams. Once an employee begins work, any disability-related inquiries or medical exams must be job related and consistent with business necessity.

In guidance published on December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) states that simply asking whether applicants and employees received the COVID-19 vaccination isn't likely to elicit information about a disability and, therefore, isn't a disability-related inquiry. However, subsequent questions, such as asking why an individual didn't receive a vaccination, may elicit information about a disability and would be subject to the ADA's requirements identified above. If you ask about COVID-19 vaccination, you may want to err on the side of caution and advise the employee not to provide any medical information to avoid implicating the ADA.

Q: Can I require older employees to get the vaccine because they may be at a higher risk of severe illness from COVID-19 but make it voluntary for other employees?

A: Federal, state, and local laws prohibit employers from treating employees less favorably because of their age. Therefore, this type of policy would likely violate these laws.

Q: If an employee asks for an accommodation from a vaccine requirement because of a disability or because of religious beliefs, what should I do?

A: If an employee requests an accommodation from a vaccination requirement because of a disability, you should engage in a discussion with the employee to identify workplace accommodation options that don't result in an undue hardship (significant difficulty or expense) to the business. This process should include determining whether it's necessary to obtain supporting documentation about the employee's disability and a consideration of the possible options for accommodation given the nature of the workforce and the employee's position. Keep in mind that the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. When determining whether providing an accommodation would pose an undue hardship, consult legal counsel.

If an employee requests an exemption from the requirement for religious reasons, employers ordinarily should assume that the request is based on a sincerely held religious belief. However, if you have objective factors that might call into question the nature or sincerity of the request (such as inconsistent behavior), you would be justified in requesting additional supporting information, according to the EEOC guidance.

Conclusion:

Ensure that your policies and practices comply with existing guidance and rules on COVID-19 vaccination and watch closely for developments.

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