© 2021 American Payroll Institute, Inc. Paid Leave for COVID-19 Vaccination and Recovery What Employers Need to Know Additional state agencies have issued guidance directing employers to allow employees to use paid sick leave (PSL) for COVID-19 vaccinations and recovery time, including in California, Colorado, Massachusetts, Nevada, New Jersey, and Oregon. In Chicago, Illinois, the city council recently passed legislation to protect workers’ right to receive the vaccine. Note: State and local PSL laws cover preventative care, which likely includes receiving and recovering from vaccinations. Federal guidance President Biden recently highlighted refundable tax credits in the American Rescue Plan Act of 2021 available to small- and midsized employers to cover the cost of providing COVID-19-related paid sick and family leave to employees from April 1 through September 30, 2021 [ARPA Pub. L. 117-2, Part 5, Credits for Paid Sick and Family Leave, §9641]. The ARPA adds three reasons for granting emergency paid sick leave when an employee is: seeking or awaiting the results of a COVID-19 test if the employee has been exposed to COVID-19 or the employer has requested the test obtaining a COVID-19 vaccine or recovering from a COVID-19 vaccination. The IRS and Treasury Department followed up with related guidance [IRS FS-2021-09, 04-2021 Treasury, Fight COVID-19, Offer Paid Leave, 04-2021]. State and local PSL guidance, laws California. The Labor Commissioner’s Office (LCO) published FAQs clarifying that an employer must pay employees for the time it takes for COVID-19 testing or vaccination, including travel time, if the employer requires the testing or vaccination (see Department of Fair Employment and Housing FAQs for guidance on COVID-19 tests and vaccinations an employer may require). Additionally, if the employer expressly requires the COVID-19 test or vaccination, or if the employee obtains the test or vaccination as a direct consequence of the employee’s discharge of the employee’s duties (i.e., the test or vaccination is effectively required for the job), the employer must pay for the costs of the test or vaccination as it is a reimbursement for necessary business expenses [LCO, COVID-19 Testing and Vaccine FAQs, 03-2021]. Separately, the Department of Industrial Relations and LCO have launched a web-based tool in English and Spanish, which provides information on the new state-wide supplemental PSL requirements (see PAYSTATE UPDATE, Issue 7, Vol. 23), including when employers must provide the supplemental paid sick leave, how to calculate leave time for full-time and part-time employees, notice requirements, and pay statement requirements [DIR, LCO, News Release 2021-48, 4-26-21]. Colorado. All employees in Colorado have the right to take paid leave from work to be vaccinated for COVID-19 under state PSL law. Employees are also entitled to use PSL if they experience vaccine side effects that prevent them from working. Employers cannot require employees to obtain vaccination appointments outside of work hours. For PSL related to COVID-19, employers can ask employees for documentation only if the leave is for four or more consecutive work days [Department of Labor and Employment, Press Release, 4-20-21]. Chicago, Illinois. Employers cannot require workers to receive the COVID-19 vaccine outside of work hours. If an employer requires workers to get vaccinated, workers must be paid at the regular rate of pay for up to four hours per dose. If an employer does not require workers to get the vaccine, workers can choose to use accrued PSL for time spent receiving the vaccine [Ordinance No. SO2021-1219, L. 2021 Office of the Mayor, Press Release, 4-21-21]. Massachusetts. The Attorney General’s (AG) Fair Labor Division published FAQs clarifying that time spent receiving the vaccine might be considered “working time” requiring compensation if the employer mandates that employees receive the vaccine at a specific location or on a specific date. Travel time and expenses might also be compensable. If the employer simply requires proof of vaccination, the time is unlikely to be compensable time [AG, FAQs, 2-19-21]. Using paid leave to cover absence from work due to feeling ill after receiving a vaccine is an allowable use of earned sick leave under state law. If the employee has exhausted all earned sick time hours, the Attorney General’s earned sick time webpage lists additional job protected and/or paid leave options that might be available. Nevada. Employers’ mandatory vaccination requirements should be combined with leave. Under the federal Fair Labor Standards Act, if an employer requires an employee to get vaccinated, the time off for obtaining the vaccine even if it is non-working time is likely to be compensable. Optional vaccination requirements or employees who choose to obtain the vaccine voluntarily should be allowed to use leave, paid leave, or flex time to obtain COVID-19 vaccinations. Additionally, employees must be allowed to use the paid time off required under state law for vaccination and recovery because the leave can be used by employees for any reason [Office of Labor Commissioner, Department of Business and Industry, COVID-19 Vaccine/ May 3, 2021 Volume 23 Issue 9
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