Effective immediately, employers in New York State must provide their employees up to four hours of paid leave to receive COVID-19 vaccinations. The four-hour leave allotment applies to each vaccine injection appointment. This leave cannot be deducted from any other leave entitlement already available to an employee by law or an employer's policy (e.g., statutory paid sick leave). Employers that already provide this leave—whether via collective bargaining agreements or a preexisting employment policy—do not need to provide additional paid leave. This new leave requirement is intended as a temporary response to the COVID-19 pandemic. The law under which the leave is required will expire on December 31, 2022.
New York State's new paid leave entitlement is expected to help encourage COVID-19 vaccinations. But what if an employer wants to do more to encourage vaccinations among its workforce? Some employers may want to consider employee incentive programs under which employees receive an additional benefit—such as a small cash bonus, a gift card, or company merchandise—if they become vaccinated. Thus far, the Equal Employment Opportunity Commission (EEOC) has been relatively silent on the legality of employee vaccination incentive plans. Employers that are evaluating whether to roll out a vaccination incentive plan should consider the following issues.
1. The size of the incentive may affect legal risk.
Under the Americans with Disabilities Act (ADA), participation in an employer's wellness program must be voluntary. If a vaccine incentive program is considered a wellness program—a murky question right now in light of the lack of guidance from the EEOC—then employers must ensure that employees do not feel coerced into participating. The greater an employer's incentive, the more pressured an employee may feel to participate in an employer's wellness program. Relatively small incentives, such as low-cost gift cards, small cash bonuses, or reimbursement of transportation costs for traveling to a vaccination site, are unlikely to be considered coercive. On the other hand, substantial incentives, such as large cash bonuses or significant job advancement opportunities, are more likely to cross the line from voluntary to coercive. Employers should also keep in mind that payments of any kind may impact non-exempt employees' regular rate of pay for the purpose of calculating overtime. Since there is no precise rule for what type of incentive may be considered voluntary versus coercive, employers are encouraged to consult with counsel when crafting a vaccination incentive program.
2. Accommodations for individuals with disabilities or religious objections.
There are also risks if an employee cannot receive the vaccination (and thus would not qualify for the incentive) for medical reasons or because of a sincerely held religious belief. Employees who are precluded from participating in the incentive plan for either of these reasons may claim they are being treated differently based upon their disability or religious practices. Employers can mitigate this risk by offering alternative ways for otherwise precluded employees to receive the incentive. For example, in lieu of a vaccination, an employer may provide the same incentive to employees who watch a COVID-19 safety video or attend safety protocol training.
3. Requests for proof of vaccinations.
Employers must keep in mind the prohibition against medical inquiries and confidentiality of medical information prescribed by the ADA. When instituting an incentive program, employers should consider the kind of documentation, if any, they will require as proof of receiving the vaccination before allowing the employee to receive the incentive. The EEOC has already stated that asking or requiring employees to provide proof of receipt of a COVID-19 vaccination is not considered a prohibited disability-related inquiry, so employers may ask the employee to show the vaccine card. In doing so, employers should be explicit that the employee should not provide any medical information as part of the proof.
We will continue to monitor developments regarding COVID-19 vaccinations and relevant changes in legislation. If your organization has any questions about New York State's new paid leave law or is considering a vaccination incentive plan for employees, please contact the authors of this alert or any other attorney in Venable's Labor and Employment Group.