On March 12, 2021, New York passed a new law requiring all New York employers to provide up to four (4) hours of paid leave for the purposes of receiving the COVID-19 vaccine. New York is the first state to implement paid leave specifically limited to time spent getting vaccinated. The law is effective as of March 12, 2021, and the law’s leave entitlement is set to expire on December 31, 2022. In addition to paid leave, the law prohibits employers from retaliating against employees who request or take vaccination leave, or otherwise exercise their rights under the new law.
Entitlement is “Per Injection”: All New York employers are now required to provide a paid leave of absence to employees for “a sufficient period of time, up to four hours, per COVID-19 vaccine injection.” Meaning, employees who receive the Moderna and Pfizer vaccine, each of which requires two doses, will receive up to eight hours of paid leave total. Employees who receive the newer, one-shot Johnson & Johnson vaccine would be limited to a maximum of four hours of paid leave. Employers must pay employees at their regular rate of pay for any hours of vaccination leave.
Interaction with other Paid Leave Requirements: This is third paid leave law implemented within the last 12 months leaving New York employers to grapple with a series of interconnected paid leave options it must provide to employees. In March 2020, New York passed the COVID-19 paid sick leave law, and, only one month later, a statewide paid sick leave law. Both laws require employers to provide paid time off depending on the size and/or net income of the employer. While the New York Department of Labor (NY DOL) issued Guidance in January 2021 attempting to clarify the scope of its COVID-19 paid sick leave, the Guidance has caused confusion with respect to the total of amount paid leave required of employers.
Importantly, however, for purposes of the paid vaccination leave, the new law clearly states employers cannot require employees to use any sick leave to which they might already be entitled. The new vaccination leave must be provided in addition to, and may not be charged against, any other leave that employees are entitled to pursuant to state law, local law, and/or employer policy.
Collective Bargaining Agreements: Employers that are parties to a collective bargaining agreement (“CBA”) may waive vaccination leave rights in the CBA. However, in order for the waiver to be valid, it must specifically reference the new provision of the New York Labor law (Section 196-c to the New York Labor Law).
Unanswered Questions: Similar to other recently enacted New York employee COVID leave laws, the new law is silent on several key issues. Most notably, it fails to address whether employers can implement any restrictions regarding employee usage. For example, how much advance notice an employee must provide an employer and/or what proof of vaccination may be requested of an employee (if any) prior to receiving paid vaccination leave.
Companies doing business in New York should contact experienced legal counsel with questions about the interaction and provision of paid leave due to COVID-19 under New York law.