VACCINATION MANDATES: BLOG SERIES PART 5
As we are making our way through certain aspects and requirements related to the OHSA ETS, today’s post focuses on questions and answers related to “Employer Support for Employee Vaccination.”
Whether an employer chooses to implement a Mandatory Vaccination Policy or a COVID-19 Vaccination, Testing and Face Covering Policy, the OSHA ETS requires either policy to contain provisions related to “Employer Support for Employee Vaccination.” As touched on briefly in part 3 of this series, employer’s policies must include language which provides up to four (4) hours of paid time off to employees to receive each vaccination dose(s) and reasonable time or sick leave for recovery from side effects following any vaccination.
Can an employer require their employees to use personal time or sick leave to get vaccinated?
No. The ETS requires employers to provide an additional minimum of at least four (4) hours of paid time off above and beyond any other leave that employers provide to their employees. Employers are also prohibited from requiring employees to get vaccinated outside of normal working hours to avoid paying the four hours of paid time off. Employees may choose to get vaccinated outside of normal working hours. If an employee voluntarily chooses to get vaccinated outside of normal working hours on his/her personal time, the employer does not have to provide payment for that time.
Can an employer require their employees to use accrued leave to recover from vaccination side effects and be compliant with the “reasonable time off” requirement?
As an initial matter, while not generally included in the ETS, OSHA has indicated in a sample policy that two (2) days of recovery time would be considered “reasonable time off.” With regard to the question above, the answer is yes, an employer can require their employee to use accrued leave to recover. In this regard, if an employee already has accrued paid sick leave, an employer may require the employee to use that paid sick leave when recovering from side effects experienced following a vaccination dose(s). If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from side effects. Notably, employers cannot require employees to use “advanced” sick leave that would require the employee to accrue negative sick leave or borrow against future sick leave.
Are employers required to reimburse employees for transportation costs incurred to receive the vaccination during work hours?
No. Employers are not obligated by the ETS to reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) incurred to receive the vaccination. This includes the cost of travel to an off-site vaccination location such as a pharmacy or travel from an alternative work location (for example, if teleworking from home) to the workplace to receive a vaccination dose.
Stay tuned for the next part of this continuing blog series. For questions about how this might affect your workplace or any other labor and employment law topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac. To stay updated on key labor and employment law developments that affect your workplace, be sure to subscribe to our blog and follow us on social media.