With vaccine availability beginning to increase, certain states have implemented paid vaccination leave requirements, and more may begin to follow suit. Paid leave aside, and while schools are permitted to mandate the vaccine, as discussed here, they may also consider implementing voluntary vaccination incentive programs to encourage their employees to voluntarily receive the vaccine. In this newsletter, we address the current paid vaccination leave requirements, as well as the issues to consider in implementing a vaccination incentive program.
Paid Vaccination Leave
The American Rescue Plan allows employers, like independent schools, to voluntarily extend employees' entitlement to leave under the Families First Coronavirus Response Act (FFCRA). Schools that choose to extend employees' entitlement to FFCRA leave should be aware that, in addition to the qualifying reasons for leave already provided under the FFCRA, leave may be taken to receive the COVID-19 vaccine or recover from the side effects of the COVID-19 vaccine. Schools that voluntarily extend FFCRA leave and require employees to obtain a COVID-19 test because of exposure, or for any other reason at the school's request, may also use FFCRA leave for time spent seeking the test and awaiting a diagnosis.
In California, employers with 25 or more employees, including independent schools, are required to provide up to 80 hours of COVID-19 supplemental paid sick leave for full-time employees and an amount equal to the total number of hours regularly worked over two weeks for part-time employees. Of note, this new law provides that paid sick time includes time spent to attend appointments to receive a COVID-19 vaccine or to recuperate from the side effects of vaccination. The law went into effect March 29, 2021 and expires September 30, 2021, unless otherwise extended. Additionally, it retroactively applies to qualifying leave taken on or after January 1, 2021. While schools are not required to reassess whether leave taken on or after January 1, 2021 should be considered paid leave under this new law, they are required to assess any requests employees may make for retroactive payment.
The Illinois Department of Labor has issued guidance, advising employers that if they mandate vaccination, the time employees spend obtaining vaccination is compensable, even if it is "non-working time." Schools that choose to make vaccination voluntary should permit employees to use sick leave, vacation time, or other paid time off to receive the vaccine, but employers do not need to provide additional paid time off for vaccination.
Effective March 12, 2021, employers in New York State, including independent schools, are required to provide their employees with up to four (4) hours of paid leave to receive COVID-19 vaccinations. The four-hour leave allotment applies to each vaccine injection appointment (i.e., up to 8 hours of total leave if employees receive two doses).
This leave cannot be deducted from any other leave that might be available to the employee under law or school policy, such as sick leave or vacation time, and must also be offered to all employees, regardless of how long they have worked for the school. Schools are not required to grant additional leave to employees who experience side effects from vaccination, though employees may use other leave available to them for such absences.
While the law does not address whether employees must provide advance notice of their need to take COVID-19 vaccination leave, schools should encourage employees to notify them as soon as possible of their need for vaccine leave. Schools are encouraged to review any existing leave policies for compliance and ensure that any employees who are responsible for approving leave requests understand employees' right to COVID-19 vaccination leave.
As this is a temporary response to the COVID-19 pandemic, leave available under this law is set to expire on December 31, 2022, unless otherwise extended.
School-Sponsored Vaccination Incentive Programs
Independent schools may require their employees to receive the COVID-19 vaccine, subject to exemptions for medical contraindication and sincerely held religious beliefs. However, some schools may be reluctant to mandate vaccination, for any number of reasons. Schools that are hesitant to mandate vaccination may still consider implementing an employee incentive program to encourage their employees to voluntarily receive the COVID-19 vaccine. An employee incentive program is one where employees receive an additional benefit—such as a small cash bonus, a gift card, or school merchandise—if they become vaccinated. Thus far, the Equal Employment Opportunity Commission (EEOC) has been relatively silent on the legality of employee vaccination incentive programs. However, schools that are considering vaccination incentive programs should consider the following issues.
The Size of the Incentive May Affect Legal Risk
Under the Americans with Disabilities Act (ADA), participation in a school's wellness program must be voluntary. If a vaccine incentive program is considered a wellness program—a murky question in light of the lack of guidance from the EEOC—then schools must ensure that employees do not feel coerced into participating. The greater a school's incentive, the less likely that the vaccine incentive would be considered a voluntary wellness program. Relatively small incentives, such as low-cost gift cards 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 significant job advancement opportunities, are more likely to be considered coercive. Schools 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, schools are encouraged to consult with counsel when crafting a vaccination incentive program.
Accommodations for Individuals with Disabilities or Religious Objections
There are also risks if an employee cannot receive the vaccine (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 vaccine incentive program for either of these reasons may claim they are being treated differently based upon their disability or religious practices. Schools 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.
Requests for Proof of Vaccination
When instituting a vaccine incentive program, schools should consider the kind of documentation, if any, they will require as proof of an employee's receipt of the COVID-19 before allowing employees to receive an incentive. While generally schools are prohibited from making certain medical inquiries and accessing confidential medical information, the EEOC has issued guidance clarifying that asking or requiring employees to provide proof of receipt of a COVID-19 vaccination is not considered a "prohibited medical inquiry" under the ADA. In requesting documentation, schools should advise employees not to provide any additional medical information beyond the vaccination card as proof of vaccination.
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We will continue to monitor developments regarding COVID-19 vaccinations and relevant changes in legislation. If your school 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 Independent School Law Group.