Am I Entitled to Paid Sick Time For Side Effects From My COVID Vaccine?

Many employers are mandating vaccines for employees returning to work. But are they required to pay you for the time you take off work to get the vaccine and for any side effects? Most likely not, but there are some jobs and some states where you might be entitled to this.

In general, there is no law requiring any sick leave in my home state of Florida, much less paid sick leave. Other states, like New York, Pennsylvania, New Jersey, and California, offer some protections for certain employees so keep an eye on those state laws. 

If you are a federal employee you may be protected under the American Rescue Plan Act. That law provides paid leave for up to 600 hours of leave for federal employees who are suffering side effects from the vaccine, under quarantine, caring for someone under quarantine, and even for getting the vaccine.

For employees of other employers, they ceased being required to give you paid leave for COVID-related illnesses under The Families First Coronavirus Response Act as of December 31, 2020. However, for small and midsize companies, if they choose to give employees paid leave for up to 10 days, which includes leave for vaccine side effects, they get a tax credit. So it makes sense for employers to offer this. Still, it's voluntary. 

Family and Medical Leave applies if you’ve been employed at least a year and they have at least 50 employees within 75 miles of your work location. However, for you to have a qualified serious health condition as required for protected leave, you had to be incapacitated for 3 days and visit a doctor at least once. Most folks have side effects for only 2 days or less, so this probably doesn’t apply to you. If it does, you were entitled to up to 12 weeks of leave, and your employer had to restore you to the same or an equivalent position and cannot hold that leave against you.

If you are in a unionized workplace, the collective bargaining agreement should protect you from being punished for being out sick. Just make sure you do everything required of you when you call out.

 If the company offers sick leave, they should allow you to use it for this purpose. If they required a vaccination for you to return to the workplace, then they should also understand that side effects for a couple days are expected.

Even if they don’t voluntarily offer sick leave for this, punishing employees who are doing the right thing by getting vaccinated is a jerk move. Employers should really consider how their policies affect morale and workplace health and safety. If you are sick from the vaccine, I suggest following the employer’s sick leave policy and making sure you call out timely. Read your handbook if they have one and make sure you follow all the requirements for calling out sick so you don’t give them an excuse to punish you.

No, Small Employers Are Not Exempt from CARES Act Leave

I'm hearing about lots of employers with fewer than 50 employees claiming that it is their choice whether to grant CARES Act emergency sick leave or FMLA. That is simply incorrect. Employers with fewer than 500 employees have to comply with the CARES Act leave requirements. However, there are some exemptions allowed to employers with fewer than 50 employees that aren't given to larger employers.

Per the Department of Labor, in order to deny CARES Act sick leave or FMLA, the employer must be able to prove:

(1) Such leave would cause the small employer's expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;  

(2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or  

(3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.  

For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the small employer's expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively.

These exemptions will not apply to most employees, so beware denying leave to  employees who don't fit these criteria. If a small employer decides to deny paid sick leave or expanded family and medical leave to an employee, the small employer must document the facts and circumstances that meet the criteria to justify the denial.

All covered employers are required to post this poster describing CARES Act rights.

Frankly, covered employers who deny this leave are pretty idiotic because they get dollar-for-dollar tax credits for all wages paid under this leave. 

For more on the leave requirements and penalties for violations, see the DOL website here.

New Paid Sick Leave And Family Leave Law For Coronavirus

Well, bowl me over. Finally, a somewhat pro-employee law is signed into law, and all it took was a global pandemic. The Families First Coronavirus Response Act (P.L. 116-127) became law on March 18, 2020.

Emergency Family and Medical Leave Expansion: If you are unable to work (or telework) due to a need for leave to care for your son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, and your employer has fewer than 500 employees or is a public agency, and you've worked at least 30 calendar days for the employer, then you qualify for up to 12 weeks of FMLA, and your job is legally protected. 

Now don't get me started on why Amazon is exempt and tiny businesses aren't. That's the power of lobbying. But hey, at least it's a start. 

You still have regular FMLA if you need to care for a sick family member, which applies to employers with 50 or more employees in a 75 mile radius of your location and you've worked at least a year. 

Unlike regular FMLA, they have to pay you, not less than two-thirds of your regular pay, up to $200/day and a maximum of $10,000 total. The first 10 days taken may be unpaid, but you may use other paid leave during that period, such as accrued vacation leave, personal leave, or medical or sick leave for unpaid leave. 

Which brings us to . . .

Emergency Paid Sick Leave:  You are entitled to up to two weeks of paid sick leave if you are unable to work or telework because of:

• a quarantine or isolation order
• have been advised by a healthcare provider to self-quarantine
• have symptoms and are seeking a diagnosis

For the above, you get your regular pay up to $511/day and $5,110 maximum.

• are caring for someone with any of the above, are caring for a son or daughter if the school or place of care of the son or daughter has been closed or the child care provider of your son or daughter is unavailable due to COVID-19 precautionsor, or
• if you are experiencing any other "substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor."

For these, you get two-thirds of your regular pay, up to $200/day and $2,000 maximum.

This applies, again, if your employer has fewer than 500 employees or is a public agency, but there's no minimum period of employment.

Your employer can't demand you find a replacement, they can't make you use other sick or vacation time, and they can't discharge, discipline, or take other discriminatory action against you for taking this leave.

Caveats

If your employer is a health care provider or an emergency responder, they don't have to comply with any of this if they don't want to. The exemption is automatic for the paid sick leave and will be subject to a regulation exempting them for the FMLA. Employers with under 50 employees may also be exempt from the sick leave under some circumstances.

There may be more coming down the road. Some states are enacting more protections. And the federal government is allowing states to expand unemployment compensation at the federal government's expense. Of course, Florida has done nothing so far to help employees. But hey, miracles happen, as is evidenced by this new law. 

Stay safe and stay home if you can!

States With Pro-Employee Laws: Paid Sick Leave

Or, States That Don't Suck For Employees, Part IV

Oh, sure, if you're lucky enough to qualify for Family and Medical Leave, you may or may not get some paid time off if you have a serious medical condition. You're paid under that law if you have any paid sick leave or vacation time, and then the rest of the leave is unpaid. However, whether or not you get any paid sick time is up to your employer.

That is, unless you live in a state beginning with the letter C.

California became the second state in the nation to mandate paid sick leave under the law signed this week. Most employees will accrue three paid sick days per year, at the rate of one hour for every 30 hours worked. San Francisco and San Diego already had a mandatory paid sick leave ordinance in place.

Connecticut was the first state to mandate sick leave. Employers with 50 or more employees, unless they are non-profits, must provide 1 hour of sick leave per 40 hours worked, up to 40 hours per year of paid sick time to service workers.

Massachusetts may break the C trend because voters there will get to approve a paid sick leave law when they vote in November.

Five cities in New Jersey have paid sick leave ordinances. So have two cities in Oregon. New York City has a paid sick leave law, along with Seattle and Washington, D.C.

The U.S. is the only major Western country without any law requiring paid sick leave for employees. Of 22 countries studied, we are the only country that provides zero paid sick leave for a worker undergoing a 50-day cancer treatment and we're 1 of only 3 countries that does not provide paid sick days for a worker missing 5 days of work due to the flu.

Making workers come to work sick is bad for everyone. It spreads illness and results in crappy morale. Hopefully more states (or even Congress) will wake up soon.

Does My Employer Have To Pay Earned Sick And Vacation Time When I Leave?

An AOL Jobs reader asked:

Donna I have a question please. I recently found out about a change in the retirement pay out rule at the hospital where I have worked for over twenty years. I have worked all these years under the rule that when I retire I would be paid for all my saved PTO hours as well as half of the ESL hours I have accumulated which in my case is half of 520 hours. Now it seems that around three years ago they decided they would not pay out for the ESL hours. In other words, we just lose that time. I can understand if they change that rule but shouldn't that just affect people hired after the change date? This is a huge number of pay hours for a hospital if 3000 employees and just for me it will be a very big loss when I retire.

Can they legally do this?

Thank You

There are no federal laws requiring sick or vacation time, so the answer to this question will (mostly) depend on your state law. I discuss what you need to know about your earned sick and vacation pay in my AOL Jobs column here.

Don’t Make These 10 Easily Avoidable Mistakes That Can Get You Fired

One of my greatest frustrations as an employee-side employment lawyer is that many people come to me after being fired because they made mistakes they could have easily avoided. Don’t lose your job over a stupid mistake. In raising children, my husband and I periodically note, “Things we shouldn’t have to say, but apparently do.” We’ve put, “Don’t eat the snail you found on the porch,” “Don’t cut a chunk out of your sister’s hair,” “Don’t put the cat in the clothes hamper,” and “Don’t write on your feet” in this category. (I understand silly product warnings more clearly since I’ve had kids).

Since I’ve seen these situations over and over again, even though they should be obvious, clearly some things don’t go without saying, even to working adults.

Here are 10 things you should not (emphasize, NOT) do if you don’t want to be fired:

1. Cursing: I’ve met dozens of employees who were fired over using the f-bomb or other curse words at work. Don’t assume that, just because supervisors curse like sailors, you can get away with having a potty mouth. Avoid curse words at work, especially with supervisors and customers.

2. Arguments With Customers: The customer is always right. If you have a customer who is being rude or abusive, get a supervisor involved. Don’t argue, curse, yell or be abusive to any customer.

3. Arguments With Supervisors: No, you can’t call your supervisor stupid or unprofessional and expect not to be fired. You can’t curse, threaten or throw things at your supervisor. Did I really have to say this? Apparently I did.

4. No-Show: If you’re sick, going to be late, or need medical leave, follow the company’s policy on calling it in. Do it within the required time and call or contact the person you’re required to call. Don’t just no-show. Don’t leave a message with a coworker. Don’t leave voice mail or email and assume it’s okay. Follow up and make sure the message was received if you can’t get the person on the phone the first time. If you’re so sick you can’t call, make sure a family member or friend calls. Check your schedule. Find out when you're supposed to return from a suspension or medical leave. 90% of life is showing up (loosely quoting Woody Allen).

5. Failing To Take Calls From A Supervisor: If your supervisor is calling you, especially if you’re out sick, don’t fail to pick up and answer. Why would anyone do this? I can’t even fathom, but it happens all the time. If your supervisor is interfering with your FMLA leave, take the call and then report them to HR. But take the call.

6. Failing To Respond To Email: If you have a company email address, check your messages. If a customer or a supervisor emails you, respond right away. Don’t let them pile up and fail to respond.

7. Failing To Respond To Voice Mail: Same as email, don’t let your voice mailbox fill up. Check your messages regularly and respond.

8. Guns At Work: Yes, Florida has a take-your-guns-to-work law. So do other states. The law says you can have a legally-permitted concealed weapon locked in your vehicle. That doesn’t mean you can take your gun onto work premises. Lock it up before you leave the house. Better yet, don’t take it. Employers are still squirrelly about guns, and I don’t particularly blame them. The law has lots of hoops and limitations. Why risk it?

9. Moonlighting: Many employers consider getting a second job (or getting a second job with a customer or competitor) to be a conflict of interest. Make sure you review the company’s policies carefully before accepting a second job.

10. Not Taking Responsibility: You have a responsibility to take care of your own stuff. That means knowing the rules, keeping track of your hours, calling in when required, and finding out when you’re expected to return from a suspension or medical leave. You are responsible for making sure you’ve provided any medical documentation needed, filled out FMLA forms and jumped through the employer’s hoops in any situation. You are responsible for understand how you are being paid. That means understanding any hourly rate, commission structure, salary, draw, or other pay plan. I can’t tell you how many people I encounter who have no idea how much they are owed or how they were being paid. That’s completely irresponsible.

I can probably think up dozens more after 27 years of practice, but these are the ones that come to mind as frequent problems. Don’t make my colleagues or me shake my head and ask, “What were you thinking?” Be responsible. Be an adult. This is your life we’re talking about. It’s important.

For more on easily avoidable mistakes, take a look at my article 10 Workplace Rights You Think You Have – But Don’t.

Are You One Cold (Or Super Bowl Flu) Away From Being Fired?

It's cold and flu season, so you may be sick right now. It's likely you'll be sick at some point this year. Maybe you'll suffer from Super Bowl flu on Monday after too much partying on Sunday (or your boss will assume you partied too much if you call in sick Monday).

So what are your rights? Can you be fired for being out sick? What if you have a doctor's note? Connecticut and six cities (Jersey City, NJ; New York City; Portland, OR; San Francisco, CA; Seattle, WA; and Washington, DC) have paid sick leave laws. Nebraska and California legislators recently introduced bills to require employers to give paid sick leave. If you don't live in any of these places, you could possibly be out of luck.

My latest article at AOL Jobs discusses the legal rights you have if you call in sick, and what to do if you are told you'll be fired if you miss work. Don't forget those flu shots!

Employees: Tell Your Representatives To Vote No On These Terrible Laws

Remember last year's viral campaign ad? The one that said, "Wake the f*#k up?" America woke up, sort of, and then went right back to sleep. So I'm telling everyone who is an employee, and everyone who depends on an employee for their food, clothing and shelter, to wake back up.

Workers are under attack in a major way right now. There are terrible laws pending that will gut the few protections employees have in America. Need I say which party is proposing them? Probably not. Here are some laws that you should tell your legislators to vote no on. Tell them today. I'm serious.

Anti-overtime law: It sounds so sweet. So appealing. Don't be fooled. It's a trick. The Working Families Flexibility Act is as anti-working-family as you can get.  The folks trying to push this one say that it will allow employees to "voluntarily" choose to take a comp day instead of being paid time and a half for overtime. These are the same folks that say forcing employees to sign arbitration agreements and jury trial waivers in consideration of continued employment constitutes "voluntary" agreement. Employers will shove "Voluntary Comp Time Agreements" in front of all new employees faster than you can say, "in the pocket of corporate lobbyists." If you want to give up all your overtime, then stay asleep. Otherwise, wake up!

Anti-prevailing wage laws: In Florida, Nevada, Tennessee, Michigan and Missouri, bills are pending that would gut prevailing wage laws. These are laws that require government contractors to pay a higher wage than the state or federal minimum wage in areas with higher costs of living. The bill in Florida would result in a 40% pay cut for some workers. Can you afford a 40% pay cut. No? Then wake up!

Right to work laws: This sounds like justice personified. Everyone should have the right to work, right? Wrong. It's one of those  Orwellian names that means the opposite of what it says. It doesn't change the at-will doctrine that exists in 49 states, saying you can be fired for any reason, including your boss's bad mood. Instead, it is intended to gut the unions. Legislation is pending in Congress and in many states. It's bad stuff. Read my article on this topic here.

Anti-paid sick leave: Efforts to deny local governments the right to pass ordinances requiring paid sick leave have popped up all over. A corporate lobbying group is behind it. Watch for these laws in your state, and call and write your legislators to vote no if your state is being targeted.

Pro wage-theft: I wrote a couple weeks ago about the efforts to legalize wage theft in Florida. Here's my post on this.

How idiotic are these laws? Well, they certainly aren't pro-family, are they? I wonder who will buy all the products and visit the travel destinations of the corporations who support anti-employee laws once American employees are bankrupted. I fear we may find out soon enough if we don't stand up and fight while we can.

These are just a few of the many anti-worker laws that have proliferated this year so far. I bet you can think of some more. If you hear of legislation that is pending in your state or in Congress that Americans need to wake up over, let me know in the comments section and I'll be glad to do my part to spread the word.

An Employment Lawyer's Debate Questions for President Obama

This is the first in a series that I am doing along with a group of employment attorneys around the country. Management and employee side attorneys will be providing their own debate questions for the Presidential and Vice Presidential candidates this week. The first candidate is President Barack Obama.

Here are some questions I’d ask the President at the debates if I had a chance:

The very first piece of legislation you signed into law was the Lilly Ledbetter Fair Pay Restoration Act, empowering women to recover wages lost to discrimination by extending the time period in which employees can file claims. You’ve also advocated for passage of the Paycheck Fairness Act, which would have required employers to demonstrate that any salary differences between men and women doing the same work are not gender-related. Plus, you convened a National Equal Pay Task Force to ensure that existing equal pay laws are fully enforced. Why do you feel so strongly about the need for pay equity in America and what do you think about the Republican party’s strong opposition to your efforts toward pay equity?

Then I’d probably ask:

Your opponent wrote an editorial saying we should let the automobile industry go bankrupt rather than bail them out during the worst part of the recession. Do you think the bailout was worth it, and are you glad you saved over a million jobs and supported an industry that has added hundreds of thousands of new jobs when most industries are cutting workers?

I’d follow up with:

You’ve said that you believe people who work full time should not live in poverty. Before the Democrats took back Congress, the minimum wage had not changed in 10 years. Although Congress did raise the minimum wage during your administration, the minimum wage’s real purchasing power is still below what it was in 1968, and full time minimum wage workers are mostly below the poverty line. You’ve said you want to further raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit. Why do you think it’s important to make sure that full-time workers can earn a living wage that allows them to raise their families and pay for basic needs such as food, transportation, and housing?

Then I’d ask:

You repealed Don’t Ask Don’t Tell, which limited gay and lesbian Americans’ right to serve in the military and be honest about their sexual orientation. You’ve also instructed the Justice Department to stop enforcing the Defense of Marriage Act, and you are in favor of the Respect for Marriage Act, which would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as other couples. Why do you think it’s important to treat gays and lesbians with respect and to end discrimination against them, and what more will you do to ensure equality for all Americans?

I’d end with:

Most Americans probably think they’re entitled to some sick time off of work, yet three out of four low-wage workers have no paid sick leave. You’ve said you support efforts to guarantee workers seven days of paid sick leave per year. Why do you think it’s unfair that a single mom playing by the rules can get fired or lose wages because her child or she gets sick, and what do you plan to do to ensure paid sick leave for all American workers?

There are, of course, lots more questions I could ask. I think the choice between the candidates as far as workplace issues is crystal clear.


Here's another perspective, from Robin Shea, a management-side employment lawyer.

What You Need To Know About Missing Work Due to Illness

Know your employer’s sick leave policy. Most employers require that you call in as soon as you know you won’t make it. No law requires paid sick leave.

Family and Medical Leave: applies if you have a serious medical condition and need several days off, or need intermittent leave for treatment.

Accommodations: if you have an illness that qualifies as a disability, you might be entitled to accommodations that will enable you to perform all the duties of your job.

Excessive absenteeism: unless you qualify for FMLA leave or have a disability for which you are seeking accommodations, your employer can fire you for any reason, including absenteeism. Know what they consider excessive. If you have to come to work sick, that’s better than losing your job.

Donna’s tips:

a. Lots of people express surprise that they were fired after being sick. “But I had a doctor’s note!” they say. A doctor’s note won’t help you unless you qualify for FMLA leave or an ADA accommodation. 90% of life is just showing up. (Woody Allen). Your employer is entitled to have you at work.

b. If you are contagious, then your employer requiring you to come in anyhow might be an OSHA violation. You can point this out, but don’t be insubordinate.

c. If ordered to come in, then rent a stretcher if you have to. Unless going to work endangers your life, comply with the boss’s order to come to work. Appeal to HR if you can, but don’t lose your job.