Employers: Mandatory Vaccine Policy May Lead to Mandatory Pay---Incentivize Instead.

Updated: Apr 8, 2021

As many employers gear up for the reopening, some of the most asked questions include: how to prevent COVID spread; how to keep employees safe at work; and how to maintain a COVID-free office space? Thus, promoting COVID vaccination is becoming the top go-to choice for many employers and HR professionals.


But should employers mandate COVID vaccination?

Just recently, the Illinois Department of Labor ("IDOL") issued its enforcement guidance addressing that, if employers implement mandatory vaccination policies, the Illinois Minimum Wage Law and the federal Fair Labor Standards Act ("FLSA") will require employers to pay for the time the employees spend obtaining the vaccine, even if it is during non-working hours. Illinois's decision comes around the same time as New York's new law, which provides paid leave for employees receiving the vaccine. The law requires employers to provide up to four hours of paid leave for public and private workers to receive the COVID-19 vaccine. The law applies to each of the two injections and cannot be counted against the regular sick leave.


California, being one of the states heavily impacted by COVID, may also issue similar guidance and regulation requiring employers that mandate COVID vaccination to compensate employees for the time required to get vaccinated, and to cover the cost of vaccination under state expense reimbursement laws. Relatedly, if the cost of vaccination is not covered by the employer, California employers should ensure the cost of the vaccine does not reduce the employee's wages below the applicable minimum wages in a workweek.


So what should employers do?


Instead of mandating, employers should consider incentivizing employees to get COVID vaccinated. A recent survey found that 53% of respondents would agree to get the vaccine, 56% would do so if encouraged by their employers, and 60% would get the shot if offered a $100 reward by their employers.


Indeed, that's what some of the employers are already doing. While some are offering cash, others are offering paid leave. Here are a few examples:

  • Target is offering free transportation and four hours of pay to its non-exempt employees who choose to get vaccinated.

  • Kroger is providing a one-time payment of $100 to all associates who receive the full manufacturer-recommended doses of the COVID-19 vaccine.

  • Love's Travel Stops & Country Stores is paying employees $75 each to receive the COVID-19 vaccine.

  • Amtrak is allowing excused absences for employees receiving vaccinations during their regularly scheduled work hours and paying employees an allowance equivalent to two hours of straight-time pay when they submit documentation of receiving the vaccine.

For employers who are considering to reopen, they should work with counsel and prepare a comprehensive COVID playbook addressing issues such as COVID leave, symptom detection, illness reporting, workspace sanitization, and vaccination incentives.

 

Richard Liu, Esq. is the Managing Counsel of ILS. He serves clients as a management-side defense lawyer specializing in employment law. Richard regularly advises Fortune 500 companies and startups on employment, labor, and commercial matters, especially in the defense of wrongful termination, workplace harassment, employment discrimination, wage-hour claims, and trade secret misappropriation.

Email: richard.liu@consultils.com | Phone: 626-344-8949