Over the past few months, the increased availability of the COVID-19 vaccine has created a host of questions for employers. Can employers require employees to get vaccinated only during non-work hours? Do they have to compensate employees who take time off work to get vaccinated? The city of Chicago recently enacted an ordinance that answers both questions (and a few more).
Under Chicago’s “COVID-19 Vaccine Anti-Retaliation Ordinance,” employers may not:
- Require that any “worker” (which is broadly defined to include both employees and independent contractors) get a COVID-19 vaccination only during non-shift hours; or
- Take adverse action against any worker for taking time during a shift to get a COVID-19 vaccination.
Obligations when mandating or not mandating vaccination
The ordinance applies to companies mandating and not mandating worker vaccination, but imposes heightened obligations on companies that do mandate vaccination. Such companies must compensate workers at their regular rate of pay for time taken during a shift to obtain the vaccination, up to four hours per dose, and may not require workers to use accrued paid time off (PTO) to do so. Companies not mandating vaccination must allow a worker who wishes to use available paid sick leave or PTO to be vaccinated.
Penalties and private right of action
Companies that violate the ordinance will be liable for a fine of between $1,000 and $5,000. The city of Chicago has yet to issue enforcement guidance, including factors that may determine whether a penalty falls on the lower or upper end of the listed fine range. We expect the city to release FAQs in the coming weeks.
In addition to the penalties, the ordinance grants a private right of action to workers subjected to adverse action in violation of the ordinance. Such workers can recover monetary and non-monetary damages, including, but not limited to, treble damages and reinstatement.
The landscape of employment law has changed with the widespread availability of the COVID-19 vaccine. Companies operating in Chicago should assess their employee vaccination policies for compliance with the COVID-19 Vaccine Anti-Retaliation Ordinance, and be alert for additional guidance from the city of Chicago.