Providing Developments & Insight on Trending Topics in Employment Law

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This article is a revised version of our <a href="https://www.employmentlawspotlight.com/2021/03/new-york-covid-19-vaccine-paid-leave/">March 18, 2021 publication</a>.

Really … another new paid leave requirement from New York? Yes indeed. On Friday, March 12, 2021, Governor Cuomo signed a <a href="https://www.nysenate.gov/legislation/laws/LAB/196-C">new law</a> amending New York’s Labor Law and granting employees up to four hours of paid leave per COVID-19 vaccine injection. The law became effective immediately, and the new leave entitlement is currently set to expire on Dec. 31, 2022. The idea is to encourage New Yorkers to get vaccinated.

Under this new law, employees are now entitled to paid leave to obtain the COVID-19 vaccine for “a sufficient period of time, not to exceed four hours per vaccine injection.” For employees receiving vaccines that require two doses, this means that employers must grant up to eight hours of total leave for vaccination (up to four hours on two different occasions). For the newer vaccine that is administered in a single dose, an employee would only be entitled to one four-hour leave. The law does not place a cap on the number of times an employee may take paid leave for a COVID-19 vaccine injection before the law expires, so presumably, if booster shots will be required/recommended before the law expires, employees would be entitled to receive additional paid time off for that.

Regarding the “paid” portion of the leave, employers must pay employees at their regular rate for time taken to get the COVID-19 vaccine. Although not specifically addressed in the law, this should be at a rate no less than the applicable minimum wage for hourly employees, so hospitality employers that take a tip credit should pay tipped employees at the full minimum wage. And significantly, employers cannot require employees to use any paid sick leave or other paid time off to which they would otherwise be entitled (e.g., under the New York State Paid Sick Leave Law, under the New York City Earned Sick and Safe Time Act, or under an existing company policy). In other words, the new leave is in addition to any other paid time off.

The law also prohibits employers from retaliating against employees who request or take the vaccine leave, or otherwise exercise their rights under the law.

Notably, the law makes explicit that the provisions of the law may be waived by a collective bargaining agreement, but only if the collective bargaining agreement references the new provision of the New York Labor Law.

Unfortunately, the new law does not address many key questions that employers have. However, some of the key questions have been clarified by the FAQs that New York State Department of Labor recently <a href="https://dol.ny.gov/system/files/documents/2021/03/cd6.pdf">published</a>.  Among other things, those FAQs clarify that: employers can require advance notice from employees; employers can require proof of vaccination (with the caveat to consider applicable confidentiality requirements); employers are not required to apply the leave retroactively for vaccinations received prior to March 12, 2021; and the paid leave is only available to the employee for their own receipt of COVID-19 vaccine injection (and not to assist a relative or anyone else in getting a vaccine).  Although the FAQs do not explicitly address recovery from vaccination, the guidance emphasizes that the leave is specifically for the purpose of receiving the injections, which suggests that employers are not required to allow employees to use the leave to recover from vaccination.  However, as a rule of thumb, we recommend allowing employees to take up to 4 hours of leave per vaccination injection, even if some of that time is spent recovering.

Employers with employees in New York State should continue to make sure they are putting policies and/or practices in place to ensure compliance. And employers outside New York should be mindful that similar laws may be coming down the pike to their locations. Please let our team know if you would like assistance ensuring that your company is in compliance.

UPDATED: COVID-19 Vaccine Paid Leave Law Encourages New Yorkers to Get Vaccinated