Updated: New York Imposes Employer Obligations to Provide Leave for COVID-19 Vaccinations

April 5, 2021
April 5, 2021 Update.  The New York State Department of Labor issued guidance in the form of Frequently Asked Questions on New York’s COVID-19 Vaccine Leave Law to clarify certain aspects of the law. This new guidance has been incorporated into this updated post.
 
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On March 12, 2021, New York enacted a law (the “NY COVID-19 Vaccine Leave Law”), effective immediately, that mandates public and private employers to grant their employees paid leave to receive the COVID-19 vaccination. This law is not retroactive and only employees receiving vaccinations on or after March 12, 2021 are eligible for paid leave. However, employers may voluntarily provide employees with such benefits retroactively.
 
Amount of Vaccination Leave. The NY COVID-19 Vaccine Leave Law requires that every employee be provided a paid leave of absence from his or her employer for a sufficient period of time to be vaccinated for COVID-19. The paid leave granted by this law is only available to the employee for their own receipt of a COVID-19 vaccine. The law does not define “sufficient period of time,” but the period of paid leave may be capped at four hours per vaccine injection (which could be up to 8 hours in total if a COVID-19 vaccine requires two injections), unless a longer period of time has been agreed to pursuant to a collective bargaining agreement or as otherwise authorized by the employer. 
 
Notice and Proof of Vaccination. The NY COVID-19 Vaccine Leave Law does not prevent an employer from requiring notice. The law also does not prevent an employer from requiring proof of vaccination but employers are encouraged to consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination.
 
Rate of Pay. Leave granted under the NY COVID-19 Vaccine Leave Law must be provided at the employee’s regular rate of pay, and may not be charged against any other leave that the employee is entitled to, including any leave provided under a collective bargaining agreement or under New York State Paid Sick Leave. Our blog post on New York State Paid Sick Leave is available here.
 
Waiver. NY COVID-19 vaccination leave may be waived by a collective bargaining agreement. To satisfy the requirements of the law, any agreement must specifically reference New York Labor Law § 196-c.
 
Discrimination and Retaliation. Employers and their officers or agents are prohibited from discharging, threatening, penalizing, or in any other manner discriminating against any employee because the employee has exercised his or her rights under the NY COVID-19 Vaccine Leave Law.
 
Expiration. This law expires and will be deemed repealed on December 31, 2022.
 
As the COVID-19 situation continues to develop and the federal, state and local governments issue additional guidance, employers need to keep cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.