Over the past few weeks, we have had a number of clients (not in health care) ask whether they can provide additional paid time off to employees who need to be away from work due to coronavirus-related reasons. While providing these extra benefits presents few legal issues, those clients also want to condition the additional leave on the employee providing proof of vaccination. Would this policy create potential legal exposure for the employers?

On its face, this policy does not appear to present major legal hurdles. Assuming that the employer agrees to accommodate employees who are not vaccinated due to medical or religious reasons, unvaccinated status alone is not a protected classification that could form the basis for a discrimination claim. Absent new state laws that would prohibit this practice, employers should be able to provide additional reasonable benefits only to vaccinated employees.

One consequence of this policy could be to discourage unvaccinated employees who experience symptoms consistent with COVID-19 from staying at home. The additional paid benefit could result in fewer workplace infections if it is universally available. Employers considering additional leave benefits should weigh their desire to encourage vaccinations against the risk of unintentionally incentivizing sick people to come to work.