The Massachusetts Attorney General's Fair Labor Division (FLD) has provided updated guidance to address leave and other issues related to the COVID-19 vaccine. The FLD's guidance is provided in the form of frequently asked questions and addresses various issues, including:
Q: Can my employer require me to get the vaccine in order to keep my job?
A: Maybe - unless you are not able to be vaccinated because of a protected legal right such as a disability or sincerely held religious belief. According to the EEOC, "the Americans with Disabilities Act allows an employer to have a qualification standard that includes "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.'" In most cases, employers have an obligation to engage in a flexible, interactive process with an employee who informs them that they are not vaccinated due to a disability, sincerely held religious belief, or other legally-protected reason. For more information, visit the EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
Q: If my employer requires me to get the vaccine, is the time spent getting the vaccine compensable working time?
A: In Massachusetts, "working time" includes all time during which an employee is required to be on the employer's premises or at any other location. Therefore, if your employer mandates that you receive the vaccine at a specific location and/or on a specific date, this is likely to be considered "working time" and therefore is compensable. If your employer simply requires proof of a vaccine, but does not mandate when, where and how you obtain it, this is unlikely to be considered compensable time. For a formal opinion, please contact the Massachusetts Department of Labor Standards at dlsfeedback@state.ma.us.
Note: The guidance doesn't seem to address federal law. Even if the time spent getting the vaccine isn't ultimately considered working time under state law, it's possible pay is required by federal law when the employer requires vaccination. Consult legal counsel to discuss your rights and obligations under both state and federal law.
Q: Is my travel time to and from the vaccination site compensable time? Does my employer have to reimburse me for mileage?
A: If an employee who regularly works at a fixed location is required to report to a location other than his or her regular work site, the employee must be compensated for all travel time in excess of his or her ordinary travel time between home and work and must be reimbursed for associated transportation expenses. Therefore, if your employer mandates that you receive the vaccine at a specific location and/or on a specific date, travel time and travel expenses may be compensable. If your employer simply requires proof of a vaccine, but does not mandate when, where and how you obtain it, travel to and from the vaccination site is unlikely to be considered compensable time. For a formal opinion, please contact the Massachusetts Department of Labor Standards at dlsfeedback@state.ma.us.
Note: As with the previous FAQ, the guidance doesn't seem to address federal law. Consult legal counsel to discuss your rights and obligations regarding travel time under both state and federal law.
Compliance Recommendations:
Massachusetts employers should read the guidance in full and consult legal counsel as needed. The FLD continues to update the guidance as circumstances change, so employers should watch for developments and ensure they're considering the latest guidance. Please contact your dedicated service professional with any questions.