Ever since the FDA approved COVID-19 vaccines, many employers — especially those in the industrial sector where people often work near each other in close quarters — have been debating whether or not to require employees to get the vaccine. More importantly, are mandatory COVID vaccines even legal?
While organizations are free to encourage their employees to be vaccinated, actually requiring them to do so may be a slippery slope.
Companies can require vaccines if the failure to be vaccinated constitutes a direct threat to other employees, but exceptions must be made for employees who cannot be vaccinated because of medical reasons, disabilities, or religious beliefs. If a company does require vaccinations, they could face discrimination claims if they deny accommodation requests based on medical or religious objections, but they do not have to accommodate secular or personal beliefs about vaccines.
If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.
Employers that plan to require employees to get a vaccine should develop a written policy. Regardless of whether the policy is for mandatory or voluntary vaccinations, employers should communicate clearly and often with the workforce as to why the company believes that vaccinations are important and let employees know that other COVID-19 precautions remain in place.
Mandatory COVID Vaccines in Illinois
According to the Illinois Department of Labor, under the Illinois Minimum Wage Law (IMWL) and the federal Fair Labor Standards Act (FLSA), if an employer requires employees to get vaccinated, the time the employee spends obtaining the vaccine is likely compensable, even if it is non-working time.
Mandatory vaccination requirements by employers should be combined with paid leave for employees to receive the first and second dose of the COVID-19 vaccine, or the employer should otherwise provide compensation for the time taken by the employee to comply with an employer-mandated vaccine requirement.
Employees that choose to obtain the vaccine voluntarily should be allowed to utilize sick leave, vacation time, or other paid time off to receive the first and second dose of the COVID-19 vaccine. Employers that do not choose and are not obligated to provide any paid leave should consider offering the employee flex time to allow the employee to become vaccinated without having to take unpaid time. If the employer does not wish to provide flex time, the employer should allow the employee flexibility to take the time off unpaid.
The Employee Sick Leave Act (ESLA) requires employers to allow their employees to use employer-provided sick leave benefits for absences due to, among other things, medical appointments of the employee’s child, stepchild, spouse, domestic partners, sibling, parent, mother-in-law, father-in-law, grandchild, grandparents, or stepparent on the same terms upon which the employee is able to use personal sick leave benefits for their own illness or injury. An appointment to receive the COVID-19 vaccine would qualify as a permissible medical appointment for purposes of the ESLA if the employer allows the use of an employee’s sick leave benefits for purposes of vaccinations.
Therefore, employers should allow the use of sick leave benefits by an employee for the purpose of the employee taking a qualifying family member to receive the first dose or second dose of the COVID-19 vaccine. In order to promote health and safety in the workplace, the Illinois Department of Labor recommends that employers review their leave and vaccination policies and revise accordingly to provide leave, time, and flexibility in order to encourage employees to obtain the COVID-19 vaccine.
