The New York City Earned Safe and Sick Time Act has been amended to require that employers provide employees with four hours of paid COVID-19 child vaccination time per vaccine injection, for each child. The amended law applies retroactively to November 2, 2021.
 
The New York City Council passed the amendment on November 23, 2021, and the bill lapsed into law on December 24, 2021 as Mayor Bill de Blasio did not act upon it within 30 days.
 
Amount of COVID-19 Child Vaccination Time. The amended law requires that any employee who is a parent of a child under the age of 18, or parent of an older child who is incapable of self-care because of a mental or physical disability, be provided with four hours of COVID-19 child vaccination time per vaccine injection, for each child. A “parent” includes a biological, foster, step-, or adoptive parent, or a legal guardian, or a person who currently stands in loco parentis to another person.
 
Use of COVID-19 Child Vaccination Time. The amended law requires that employees use COVID-19 child vaccination time to either (i) accompany a child to receive a COVID-19 vaccine injection, or (ii) care for a child who is experiencing temporary side effects from a COVID-19 vaccine injection. The amended law does not prohibit employers from taking disciplinary action, up to and including termination, against employees who use COVID-19 child vaccination time for uses other than those described.
 
Employers may not require employees taking COVID-19 child vaccination time to work additional hours to make up the hours for which they were absent or require employees to search for or find a replacement employee to cover the hours absent.
 
The amended law also prohibits any adverse action against an employee that penalizes or is reasonably likely to deter an employee from using or attempting to use COVID-19 child vaccination time. Adverse actions include, but are not limited to, threats, intimidation, discipline, discharge, demotion, suspension, harassment, discrimination, and reduction in hours or pay.
 
Notice and Proof of Vaccination. An employer may require “reasonable notice” of the need to use COVID-19 child vaccination time. Where the need is foreseeable, an employer may require reasonable advance notice, not to exceed seven days prior to the date of use. Where the need is not foreseeable, an employer may require an employee to provide notice “as soon as practicable.”
 
An employer may require that, within seven days of the use of COVID-19 child vaccination time, the employee provide reasonable documentation that the child for whose care the COVID-19 vaccine time is claimed has received a COVID-19 vaccine injection.
 
Rate of Pay. Employers must pay COVID-19 child vaccination time at an employee’s regular rate of pay at the time it is taken, provided that the rate of pay is not less than is required by other federal, state, or local law. The rate of pay may not be charged against an employee’s accrual or use of other leave provided for by the Earned Safe and Sick Time Act. Employers must pay COVID-19 child vaccination time no later than the payday for the next regular payroll period beginning after the COVID-19 child vaccination time was used by the employee.
 
Waiver. The requirement to provide COVID-19 child vaccination time cannot be waived, notwithstanding certain collective bargaining agreements.
 
Penalties and Enforcement. Employer penalties for COVID-19 child vaccination time violations include the following:

• Where an employee is unlawfully not compensated for COVID-19 child vaccination time, the employee is entitled to three times the wages that have not been paid or $250, whichever is greater;
• Where an employee is unlawfully denied COVID-19 child vaccination time or where COVID-19 child vaccination time is charged against other Earned Safe and Sick Time Act leave accruals, the employee is entitled to $500.

Any employer found to be in violation of the amended law is liable for a civil penalty payable to New York City not to exceed $500 for the first violation, and, for subsequent violations that occur within two years of any previous violation, not to exceed $750 for the second violation and not to exceed $1,000 for each succeeding violation. Penalties are imposed on a per employee basis.
 
The amended law provides a 60-day phase-in period during which time the above penalty provisions for violations of COVID-19 child vaccination time will not be enforced without first providing employers with written notice and a 15-day cure period for alleged violations.
 
Retroactive Effect. The amended law applies retroactively to November 2, 2021. For employees who used leave time or unpaid time for a COVID-19 child vaccination time purpose between November 2, 2021 and December 24, 2021, employers can satisfy COVID-19 child vaccination time obligations by paying the employee for the time used no later than the payday for the next regular payroll period following the December 24, 2021 effective date.
 
Expiration. The amended law expires and is deemed repealed on December 31, 2022.
 
As the COVID-19 situation continues to develop, and federal, state, and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.