COVID-19

Can I Get Paid Time Off to Get a COVID-19 Vaccine?

Probably yes. Many employees in California are entitled to paid sick leave for the purpose of getting vaccinated against SARS-CoV-2, the virus that causes COVID-19.

In March, the California legislature passed a new law to replace the supplemental paid sick leave provisions of the federal Families First Coronavirus Response Act (“FFCRA”), which expired on December 31, 2020. The new law, signed by Governor Newsome on March 19, 2020, applies to any California employer with more than 25 employees. Like the FFCRA, the new law contains a sunset provision, under which it expires on September 30, 2021. Until that date, California workers have important protections when they require sick leave for COVID-19-related reasons.

The new law provides a right to paid sick leave similar to the sick leave by the FFRCA,[1] but it also includes a provision that grants workers the right to paid sick leave (“PTO”) to receive a COVID-19 vaccination.

What If I Already Took Time Off Under Other COVID-19 Leave Laws?

The new law requires PTO for getting a COVID-19 vaccine in addition to any other employer-provided PTO. Thus, if you exhausted your leave under the FFCRA or other COVID leave laws, you can still take PTO under the new law. Employers may not, subject to some narrow exceptions, require employees to use other leave in lieu of or before using the newly enacted COVID-19 PTO time.

What If I Already Took Unpaid Time Off to Get My COVID Vaccine?

You might be able to ask your employer to pay you back. The new law is retroactive to January 1, 2021, and employers are required to compensate employees for any unpaid leave taken before the new law’s effective date. Thus, if you had to take unpaid leave to get a COVID-19 vaccination, or for any other qualifying reason, you may request retroactive payment from the employer.

Can My Employer Fire Me For Taking Time Off to Get Vaccinated?

No. The anti-retaliation provisions of Labor Code section 246.5(c) apply to protect workers who request PTO that would be covered by the new law. Thus, if your employer retaliates against you for taking leave to get a COVID-19 vaccination, for another qualifying reason, your employer could be liable to you for reinstatement and backpay.

On March 19, 2021, Governor Newsom signed the COVID-19 Supplemental Paid Sick Leave Bill (SB 95) into law, ensuring further protections for employees who are forced to take COVID-19 related leave. With the expiration of the Emergency Paid Sick Leave Act at the end of 2020, California workers were again forced to choose between their wages or their health. Now, California employers (defined as those who employ more than 25 employees) must provide up to 2 weeks of fully paid sick leave (up to $511 /day) when the employee cannot work or telework for the following reasons:

• The employee is subject to a quarantine or isolation period related to COVID-19 as defined by the State Department of Public Health, the CDC, or a local health officer who has jurisdiction over the workplace;
• The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
• The employee is attending an appointment to receive a COVID-19 vaccine;
• The employee is experiencing symptoms related to COVID-19 and seeking a medical diagnosis;
• The employee is caring for a family member who was instructed by the State Department of Public Health, the CDC, a local health officer, or a healthcare provider to self-quarantine or isolate due to COVID-19;
• The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Although the law takes effect on March 29, 2021, the law will apply retroactively, meaning an employee can request sick leave pay for leave taken for any of the above reasons after January 1, 2021. For example, if you took leave in early January because your healthcare provider advised to self-quarantine due to COVID-19 exposure, you can now ask your employer to pay for up to 2 weeks of leave.

Generally, full time employees may receive up to 80 hours of COVID-19 supplemental paid sick leave, while part-time employees may receive an amount of leave correlating with the number of hours the employee regularly works over 2 weeks. If an employee requests retroactive sick leave pay, the employer must pay the employee during the employee’s next pay period. Additionally, an employer generally cannot require the employee to use other paid or unpaid leave, paid time off, or vacation time before the employee uses COVID-19 supplemental paid leave. The labor commissioner must enforce this supplemental paid sick leave in the same manner it enforces “paid sick days,” “paid sick leave,” or “sick leave’ under existing law.

This law, which will remain in effect until September 30, 2021, ensures full protection for California Workers through the seemingly short remainder of the COVID-19 pandemic.

With COVID-19 vaccines now available, the question arises whether employers can require their employees to receive the vaccine as a condition of employment. On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued updated guidance, suggesting employers may require employees get the vaccine, however, several important caveats must be considered before implementing such a policy.

“If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace,” the new guidance says. “This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”

Disability accommodation: To comply with the American with Disabilities Act (“ADA”), when a disability-related issue prevents an employee from getting a COVID-19 vaccine, the EEOC said that employers must conduct a case-by-case analysis to figure out if that employee poses a “direct threat” to the health and safety of the workplace by being unvaccinated. Specifically, employers should conduct an individualized assessment of four factors in determining whether a direct threat exists:

1. the duration of the risk;
2. the nature and severity of the potential harm;
3. the likelihood that the potential harm will occur; and
4. the imminence of the potential harm.

A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk, so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms. Some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.

Religious exemption: Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. Courts have defined “undue hardship” under Title VII as having more than a trivial or minor cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.

The EEOC and OSHA may issue further guidance. There may also be guidance from the Advisory Committee on Immunization Practices (“ACIP”), which is a committee within the CDC made up of medical and public health experts who develop recommendations on the use of vaccines in the United States. Many state and local governments rely on the ACIP’s recommendations in developing vaccine mandates, such as those for public schools.

The ACIP provides annual recommendations regarding flu vaccines and is likely to make recommendations regarding any COVID vaccine. Based on the ACIP’s guidance, it’s possible that states may mandate the COVID vaccine for certain categories of employees, such as essential workers.

Reach out to us today to schedule a free initial consultation. You can get in touch with someone who can help by calling (619) 342-8000 or by contacting us online.

With numerous COVID-19 vaccines in development, the question arises whether employers will be able to require their employees to receive the vaccine as a condition of employment.

The U.S. Equal Employment Opportunity Commission (“EEOC”) has stated in its latest version of its guidance, updated on March 21, 2020, after its declaration of the COVID-19 pandemic, that an employer cannot require all employees to get a flu vaccine. However, “employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” The EEOC also emphasized that there is no vaccine currently available for COVID-19, suggesting that the agency may revisit the issue once a vaccine is available.

The EEOC guidance also makes clear that employers will need to consider making exceptions to any vaccination requirement for employees: (1) under the Americans with Disabilities Act (“ADA”) if an employee raises a potential health concern with the vaccine; or (2) under Title VII if the employee raises a religious objection to the vaccine.

The EEOC and OSHA may issue further guidance. There may also be guidance from the Advisory Committee on Immunization Practices (“ACIP”), which is a committee within the CDC made up of medical and public health experts who develop recommendations on the use of vaccines in the United States. Many state and local governments rely on the ACIP’s recommendations in developing vaccine mandates, such as those for public schools.

The ACIP provides annual recommendations regarding flu vaccines and is likely to make recommendations regarding any COVID vaccine. Based on the ACIP’s guidance, it’s possible that states may mandate the COVID vaccine for certain categories of employees, such as essential workers.

Do You Need Legal Assistance?

If you believe your rights are being violated by an employer illegally insisting that you get a COVID-19 vaccine as a condition of employment, reach out to Haeggquist & Eck, LLP for assistance. We can help employees hold their employers accountable for violating their rights on an individual level or as a class-actions if the employer’s violations affect more than one individual.

Learn more about what we can do for you during a free initial case evaluation. Schedule yours with us today by calling (619) 342-8000 or by filling out our online contact form.

Earlier this year, Governor Newsom signed Executive Order N-51-20, which we discuss in our blog here. The order provided paid sick leave for food shttps://haelaw.com/blog/2020/april/california-s-additional-paid-sick-leave-for-esse/ector workers at large employers (over 500 employees). On September 9, 2020, Governor Newsom signed Assembly Bill (AB) 1867, which, among other things, codifies the executive order’s language, with some modifications, creating new California Labor Code §248. The bill also provides paid sick leave requirements for other large employers, creating a new California Labor Code §248.1.

Like Executive Order N-51-20, Labor Code §248 provides paid sick leave for food sector workers who work for an employer with 500 or more employees. These workers may receive up to 80 hours of paid sick leave if they are unable to work for one of the three following qualifying reasons: (1) The food sector worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) The food sector worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or (3) The food sector worker is prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19. The law will apply until December 31, 2020 or the end date for benefits under the Families First Coronavirus Response Act (“FFCRA”), whichever is later.

With respect to Labor Code §248.1, it provides for paid sick leave to other private hiring entities with 500 or more employees. Except for food sector workers covered under Labor Code §248, this section covers all other employees, including healthcare providers and emergency responders (who may be excluded under the FFCRA). Employees may use paid sick leave for the same reasons identified above under Labor Code §248. Notably, paid sick leave under Labor Code §248.1 must be provided in addition to any paid sick leave available to a worker under California’s pre-COVID-19 Healthy Workplaces, Health Families Act of 2014 (“HWHFA”), which already requires at least three days of paid sick leave. Further, Labor Code §248.1 prohibits employers from requiring its workers to use other paid or unpaid leave, time off, or vacation time that the employer provides before, or in lieu of, using paid leave under Labor Code §248.1. Employers are also required to itemize the amount of leave available on employees’ itemized wage statements.

Moreover, under the new laws, employers cannot require, as a condition of using leave, that workers search for or find replacement workers to cover the days they use leave. Similarly, a subject employer cannot deny a worker the right to use leave, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against a worker for using leave, attempting to exercise the right to use leave, filing a complaint with the Labor Commissioner, cooperating in an investigation of an alleged violation of the laws, and/or for opposing any policy, practice, or act that the laws prohibit.

Finally, AB 1867 added Health and Safety Code §113963, which allows food sector worker employees permission to wash their hands every 30 minutes and additionally as needed.

If you feel your employer has violated your paid leave rights, you may be able to hold the company accountable for damages and penalties.

For more information or to schedule a complimentary consultation with an attorney who can help, contact Haeggquist & Eck, LLP online or call us at (619) 342-8000.