Based on discussions that I have had with many of my clients in the last few weeks, most hope that their employees will be vaccinated for COVID-19. At the same time, most are reluctant to mandate vaccines. While the EEOC has issued guidance that employers may require most employees to be vaccinated before returning to work, employers will still need to accommodate employees with religious or medical objections to being vaccinated. Other commentators have also questioned whether an employee might be able to challenge a mandatory vaccine program on grounds that the FDA only granted emergency authorization for vaccines currently in use because the statute allowing emergency authorization specifically states that individuals may “refuse administration of the product.” While the statute does not appear to provide a private cause of action for at-will employees who refuse to get vaccinated, no doubt some lawyers will look for ways to use this statute to challenge mandatory vaccines. But even if there were no legal hurdles to mandating vaccines, the issue is still politically fraught and one that many employers would rather avoid.
Ultimately, depending on the nature of the workplace, it may be best to simply encourage employees to be vaccinated rather than mandate it. One way to encourage vaccination is to provide employees with additional paid leave for time spent being vaccinated. In fact, paid vaccination leave is already required in some states. For example, Governor Andrew Cuomo signed legislation last month requiring all New York employers to provide employees up to four hours of paid leave for each COVID-19 vaccine that they receive, in addition to any paid time off that the employees have already received. California also recently passed a law requiring employers to provide up to 80 hours of supplemental paid leave for COVID-19 reasons, which includes time needed to get vaccinated and to deal with symptoms related to a COVID-19 vaccine.
Some employers have also offered special bonuses to employees who have been vaccinated. However, offering anything other than a de minimis award (e.g., a t-shirt or a baseball cap) could prove problematic under the Americans with Disabilities Act because employees who are not able to be vaccinated due to health reasons may contend that they have been discriminated against. The advantage of giving additional paid leave for employees who are vaccinated instead of providing them with an iPad or a $100 gift certificate is that the former is clearly a benefit meant to compensate the employee for the time it took to be vaccinated as opposed to being an incentive award.
While some employees have expressed resistance to being vaccinated, many employers are discovering that resistance has been declining in recent weeks as more people are vaccinated. Paid leave for vaccines may be just the final nudge that some employees need to not miss their shot.