The New York State legislature recently passed, and Governor Cuomo signed, new legislation providing paid time off for employees for the purpose of receiving the Covid vaccine. The new legislation provides up to four hours of paid leave per injection. This allocation of time allows for employees to receive any of the three available vaccines and takes into account the difference in dose amounts for the respective types as the Johnson & Johnson Vaccine only requires a single dose, unlike the vaccines created by Pfizer and Moderna. The new legislation has also made it clear that this particular legislation is to be used in conjunction with existing laws on paid leave and sick time and cannot be used by the employer as a substitution for, or in lieu of, previously existing paid leave. Employers are still required under New York state law to provide required paid time off and sick leave, and employers should be cognizant of the fact that a particular employee may be entitled to a greater amount of paid leave if they are otherwise eligible under a previous authorization or a collective bargaining agreement. Notably, this legislation has a sunset date of December 31, 2022, and it will no longer be in effect after that date unless it is otherwise extended or amended.
As with all types of paid leave and sick time, employers are required to compensate employees at their normal rate of pay when employees are using their vaccination leave. Additionally, as is the case with other types of paid leave and sick time, employers are prohibited from taking retaliatory actions against any employee who requests or takes vaccination leave. The only ambiguity that remains with the interpretation of the new law and administration of vaccine leave is the type of documentation that an employer is permitted to request from an employee who is requesting leave for the stated purpose of getting the Covid vaccine. The EEOC (Equal Employment Opportunity Commission) has provided guidance that states that employers are permitted to request proof of vaccination from their employees with certain exceptions, but there has not yet been any such guidance that has been issued at the state level.
There are also some questions that remain as to whether employees who have previously requested and obtained time for the purposes of obtaining the vaccine can have that time reinstated. Despite the existence of some ambiguity concerning the new law, the overall premise and general requirements are very clear. Employers in New York are required to provide up to four hours of paid leave for the purposes of obtaining Covid Vaccinations. Strict compliance with the law is the only way that we can ensure that the most people possible can safely obtain the vaccination and help contribute to the reopening of our state.
If you or your H.R. department have any questions concerning the provision of paid leave to employees for the purposes of obtaining the Covid vaccine and how that provision must be implemented, please do not hesitate to call us at 516-888-1208 or email Cynthia Augello at [email protected]
Thank you to Joel Thomas, JD for his assistance with this post.