On March 12, 2021 NY’s Governor Cuomo signed a law (amending the New York Labor Law) that entitles employees to up to four hours of paid leave per COVID-19 vaccine dose. The law took effect immediately and the leave entitlement is set to expire on December 31, 2022.
The new law provides:
· Four hours of paid vaccination leave per dose: All NY employers are now required to provide a paid leave of absence to employees for “a sufficient period of time, not to exceed four hours per vaccine injection” to obtain the COVID-19 vaccine. For employees who receive the Pfizer or Moderna vaccine, this law requires employers to grant up to eight hours of leave for the vaccination (four hours per dose). For those receiving the Johnson & Johnson vaccination, the employee would only be entitled to one four-hour leave period.
· Regular Rate of Pay: Employers must pay employees at their regular rate of pay for any hours of vaccination leave.
· Retaliation Prohibited: The law prohibits employers from retaliating against employees who request or take vaccination leave, or otherwise exercise their rights under the new law.
· Collective Bargaining Agreements: The law makes explicit that where employees are granted vaccination leave rights by a collective bargaining agreement (CBA), the CBA controls, but only where the CBA references the new provision of the New York Labor Law.
· Vaccination Leave Must Be in Addition to Other Required Leaves: Employers cannot require employees to use any sick leave that they are entitled to, such as leave provided under a company’s sick leave policy, under the New York State Paid Sick Leave Law, under the New York City Earned Sick and Safe Time Act, or any other earned accrued leave. The new vaccination leave is required to be provided on top of any such leaves.
When the law was signed it was silent on what, if any, documentation an employer could request of its employees to verify their need for this leave. The New York Department of Labor recently released guidance on the new law in the form of Frequently Asked Questions, available on the DOL’s website.
The guidance confirms that employers may require employees to give notice of the need to take time off for vaccination as well as permitting employers to require employees to provide proof of vaccination. If employers do require proof of vaccination, the DOL advises that “employers are encouraged to consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination”.
New York employers should take steps to come into compliance, including updating leave policies, training managers on new leave entitlements, and coordinating responses to employees requesting vaccination leave.