This week’s article was co-authored with Alisha N. Sullivan and Emily A. Zaklukiewicz who are members of Robinson+Cole’s Labor, Employment, Benefits + Immigration Groups.
Although millions of people in the United States have been vaccinated since COVID-19 vaccine distribution began in December 2020, a large percentage of the population still remains unvaccinated. Many lawmakers and companies are brainstorming ways to remove barriers to individuals obtaining the vaccine, especially frontline workers who remain at a higher risk of COVID-19 exposure and infection. One such barrier is the time away from work that may be required to obtain the vaccination and the risk that the time will be unpaid. Many employers, including manufacturers, are questioning whether they must, or should, provide employees with paid time off for time spent related to obtaining the COVID-19 vaccine.
On the federal level, there is generally no law specifically requiring payment for employee time spent obtaining the vaccine or recovering from side effects or complications other than as it relates to federal contractors that may be required to provide paid sick leave. That being said, some companies that voluntarily choose to provide their employees with such paid time may be eligible for tax credits under the Families First Coronavirus Response Act (FFCRA). While the requirement to provide paid leave under this law expired at the end of 2020, the Consolidated Appropriations Act (CAA) extended the availability of the tax credit to employers who voluntarily provide such leave through March 31, 2021 and the American Rescue Plan Act of 2021 (ARPA) subsequently extended the availability of the tax credit through September 30, 2021. It is important to note that previously, if an employer provided paid sick leave to an employee and claimed a tax credit for the leave provided to that employee in 2020, the employer was not able to claim the tax credit for any leave provided to that employee in 2021. However, ARPA now permits employers to receive a payroll tax credit for up to ten additional days of paid sick leave for employees starting April 1, 2021 (even if the employer previously took a tax credit for paid sick leave for those employees prior to that time). This means that employers may now offer up to an additional ten days of paid sick leave to employees, even if the employee exhausted his/her FFCRA leave in 2020 or the first quarter of 2021, and the employer may still claim a tax credit for this leave. Importantly, ARPA also expanded the qualifying reasons for paid sick leave to include time spent obtaining the vaccine and recovering from any injury, disability, illness, or condition related to vaccination, among other reasons.
On the state level, there may be laws that require payment including more recent laws that have been passed. For example, New York recently enacted a law that requires all public and private employers to provide employees with four hours of paid leave, per dose, to obtain the COVID-19 vaccine. Additionally, existing state and local paid sick leave laws may cover time spent obtaining the vaccine (e.g., preventative care) as well as time spent recovering from side effects or complications or assisting a family member in this regard.
Additionally, payment may be required under wage payment laws. Depending on the circumstances, exempt employees may be entitled to their full salary for time off (both hours and days) related to obtaining the COVID-19 vaccine. Further, employers that implement mandatory vaccine policies may be required to pay for the time obtaining the vaccine as such time may be considered “working time” even if it occurs outside normal working hours.