Vaccine Time Considered Paid Time? IDOL Says “That Depends”
As the COVID-19 vaccine supply and appointments ramp up in the State of Illinois, the Illinois Department of Labor (IDOL) has issued employer guidance on providing employees with time off and flexibility to get vaccinated. Pivotal to the IDOL guidance is whether the vaccine is mandatory or voluntary, but in either instance, the agency recommends that employers review their leave policies and make any necessary revisions to enable employees to obtain the COVID-19 vaccine.
Mandatory Vaccination Requirements
The IDOL guidance confirms that under both the Illinois Minimum Wage Law and the federal Fair Labor Standards Act, time spent getting vaccinated is “likely compensable” if the employer requires that employees be vaccinated. This is true regardless of whether the time spent obtaining the vaccine is during regular work hours or not.
IDOL advises that mandatory vaccination requirements by employers “should be combined with paid leave for employees to receive the 1st and 2nd dose of the COVID-19 vaccine”. The guidance is unclear as to whether this means employers can require employees to use existing accrued sick leave or vacation time in order to receive the vaccine, or whether IDOL contemplates that employers offer additional paid leave to enable employees to receive the vaccine. Employers should consult with legal counsel before requiring employees to apply any existing paid leave toward obtaining a mandatory vaccine. At a minimum, employers should compensate employees for the actual time spent by the employee to comply with the employer’s mandatory vaccine requirement.
Where the COVID-19 vaccine is voluntary, employees who choose to obtain the vaccine should be permitted to use sick leave, vacation time or other paid time off to receive the vaccine. IDOL asks employers that do not otherwise provide any paid leave to consider offering employees flex time so that employees can become vaccinated without having to take unpaid time off. If the employer does not want to provide employees with flex time, then the employer “should allow the employee flexibility to take the time off unpaid” to get vaccinated.
Vaccinations for Employees’ Family Members
Under the Illinois Employee Sick Leave Act, employees may use any employer-provided sick leave benefits for absences due to, among other things, medical appointments of the employee’s family members on the same terms that the employee is able to use sick leave benefits for their own illnesses or injuries. The IDOL guidance confirms that if the employer allows its employees to use paid sick leave for their own vaccination appointments, it must also allow employees to use available paid sick leave to take qualifying family members to receive their COVID-19 vaccination doses.
Vaccine Recovery Time
The IDOL guidance does not opine on time off taken to recover from the side effects of a COVID-19 vaccine. According to the CDC, common side effects of all three vaccines include soreness, redness, and swelling at the site of the injection and fatigue, headache, muscle pain, chills, fever, and nausea, and these effects can last a few days. In the instance of employer-mandated vaccines, time off taken to recover should be paid, and for those employees who voluntarily obtain the vaccine, they should be permitted to use available time off, whether paid or unpaid.
Employers with questions about COVID-19 vaccinations in the workplace should contact the Franczek attorney with whom they regularly work.