On March 12, 2021, New York Governor Andrew Cuomo signed a new law (S.2588-A/A.3354-B), granting paid leave to private and public New York employees who receive a COVID-19 vaccine. New York’s COVID Vaccination leave law became effective March 13, 2021.
The new legislation amends the New York Labor Law.
The new leave law amends Article 6 of the New York Labor Law as of March 13, 2021, and sunsets on December 31, 2021. Leave does apply retroactively to any leave that employees took for a vaccine appointment before the law’s effective date. While active, the amendment requires New York employers to provide leave to employees needing time off to receive a COVID-19 vaccination. The leave is four hours per injection, entitling employees receiving a two-dose vaccine to four hours for each vaccination administration.
The law is clear on several requirements about the COVID vaccination leave.
The new law applies to all employers, regardless of size, with New York employees. The amendment requires employers to offer leave to any employed individuals without exception. If an employee alerts their employer that they need time off to get vaccinated, the employer must:
- Provide the paid leave in addition to any other leave required by law;
- Offer leave to the requesting employee regardless of any other similar leave policy; and
- Compensate employees at their regular rate of pay.
The state released additional FAQs further explaining how the leave operates for employers and employees.
On March 26, 2021, the New York State Department of Labor (NY DOL) released FAQs on the new law. The Frequently Asked Questions (FAQs) open with a recitation of the new Labor Law provision (Chapter 77 of the Laws of 2021). The FAQs clear some ambiguities of the law. The FAQs reiterate who the law covers (employers include any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business, or service), the amount of leave available per shot (4 hours maximum), and the compensation rate (their regular pay rate). The leave time for COVID vaccination FAQs clarifies that leave is only available to employees for their vaccination and that an employee cannot request leave to assist someone else, including a relative needing leave. Finally, the leave rights may be waived in a collective bargaining agreement (CBA) if the CBA specifically references Labor Law §196-c in its waiver of the leave rights.
The new FAQs clarify several questions about the law but do not offer complete guidance about its implementation.
The FAQs address the fact that the law does not define what a sufficient period of time to be absent for a vaccine injection means. Instead of giving definitive meaning to the term, the FAQs state that the paid leave period for a single injection cannot exceed four hours. This meaning does not address whether an individual is entitled to use other forms of paid leave if they need additional time to receive their vaccination. Though the FAQs clear up that employers may require notice and request proof of vaccination before granting leave, it still leaves some related questions unanswered. Further guidance may be needed to describe what constitutes proof of vaccination. Relatedly, the FAQs nor the law address tracking of the availability of leave. Nor is there any guidance on whether an employer can exert control over when an employee schedules a vaccine, for example, whether an employer can require employees to schedule a vaccine and take vaccine leave outside of an employer’s peak hours or is leave available on demand.
More guidance is needed on the particulars of notice and proof of vaccination.
The FAQs state that employers can ask employees for notice and proof of vaccination, but it does not give administrative guidance or specifics. For example, the law or FAQs fail to address the timing and acceptable notice methods (e.g., oral, written, and/or electronic). More guidance is welcome that describes or defines the types of documentation that employers can request as proof of vaccination and the amount of time available for employees to produce their vaccination proof.
New York employers should review the release on the new leave law and the New York State COVID-19 Vaccine Information Page for more information. Necessary steps to ensure compliance with the state’s new vaccination leave law may include advising managers of the leave’s availability to employees, revising written leave policies to allow vaccination leave, and developing a vaccination leave processing and tracking method. Employers requiring proof of vaccination should consider any confidentiality requirements applicable to such records before requesting proof of vaccination. Employers should consult with their counsel about taking steps to comply with the leave law’s requirements before making any plan changes.
In case you missed it, view materials from our March 16 special compliance webinar: The Impact of the American Rescue Plan Act of 2021 (ARPA)
EPIC offers this material for general information only. EPIC does not intend this material to be, nor may any person receiving this information construe or rely on this material as, tax or legal advice. The matters addressed in this document and any related discussions or correspondence should be reviewed and discussed with legal counsel prior to acting or relying on these materials.
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