March 25, 2021
On March 12, 2021 Governor Andrew Cuomo (D) signed a law that, immediately upon enactment, provides public and private employees with up to 4 hours of leave per COVID-19 vaccination. In mandating leave specifically for COVID-19 vaccination, New York created a novel leave separate from its paid sick leave (PSL) requirements or leave for isolating or quarantining due to COVID-19 that could be replicated by like-minded state and local lawmakers. For more details on the law, please see below.
The law does the following:
- Grants public and private employees with a sufficient amount of time, not to exceed 4 hours, per COVID-19 vaccination injection.
- Excludes employees who are already receiving a greater number of hours of leave specifically for COVID-19 vaccination, including under a Collective Bargaining Agreement (CBA).
- Dictates that COVID-19 vaccination leave will be excused, not charged to other existing leave and paid at employees’ regular rate of pay.
- Prohibits employers from taking any discriminatory or retaliatory actions against employees exercising their rights under the act.
- Allows CBAs to expressly waive the provisions of the law.
- Sunsets on December 31, 2022.
On March 29, 2021 New York’s Department of Labor issued a FAQ on the law. It confirms that:
- The maximum number of hours of leave depends upon on the number of required COVID-19 vaccine injections. If it is 2 injections, it would be up to 8 hours.
- Employers may not substitute other existing leave options available to employees, including PSL required by Labor Law §196-b (state’s PSL requirement) or CBA.
- Employers may require employees to provide notice of taking leave.
- Employers may require proof of vaccination. The department encourages employers to consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination.
- Employers may but are not required to provide retroactive leave for employees who have already received their COVID-19 vaccine(s).
The law and subsequent FAQ do not address several issues, including:
- Whether employees would be eligible for 4 hours for potential future booster shots.
- A specific timeframe for when employees must use leave or intermittent leave.
- Requiring employer recordkeeping and other compliance issues.
We expect more guidance from New York’s Department of Labor. The Business Group is monitoring developments at the state and local levels and will update members if other states or localities adopt similar requirements.
The Business Group recommends that affected employers:
- Review current leave policies to determine what changes to leave provisions you may need to make to accommodate the law.
- Inform employees and managers of the availability of such leave.
- Work with HR, payroll and any third-party vendors to determine what steps, if any, should be taken to comply.
If you have questions, comments, or concerns please contact us.
We provide this material for informational purposes only; it is not a substitute for legal advice.