Effective immediately, all New York employers, regardless of size, are required to provide employees with up to 4 hours of paid time off to be vaccinated against COVID-19. Employees may receive a greater amount under a collectively bargained agreement or as otherwise provided by the employer. This new leave requirement amends the New York Labor Law and automatically sunsets on December 31, 2022.
Important points for New York employers include:
- Amount of time – All New York employees must receive paid leave for “a sufficient period of time” (up to 4 hours) per vaccine injection – this means up to 8 hours for those vaccines requiring two doses. The legislation is silent on how an employer may determine the amount of time that is sufficient or whether an employer can request documentation or otherwise validate how much time actually was spent by an individual employee getting vaccinated. Pending guidance from the State on these issues, employers may want to request that employees certify how long the vaccination process took prior to issuing payment.
- Rate of pay – The vaccination leave is to be paid at the employee’s regular rate of pay.
- Interaction with other leave – The vaccination leave is in addition to any other leave entitlements, including sick leave or accrued paid time off. Employers with fewer than 500 employees may wish to consult with counsel on whether they can rely on tax credits through the federal Families First Coronavirus Response Act (“FFCRA”), which was recently amended and expanded, to be able to offset the cost of this New York paid time off requirement. [For more information on the FFCRA expansions, see our March 16, 2021 e-alert on the American Rescue Plan].
- Waiver – The leave requirement may be waived by collective bargaining agreement if it explicitly references the new Labor Law provision.
- Non-discrimination – Employers are expressly prohibited from discriminating or retaliating against an employee who has requested or obtained a leave of absence to be vaccinated.New York employers should review their paid leave policies and make any necessary revisions to comply with this new category of required paid leave.
If you have any questions relating to these new paid leave requirements, preparing certification documents, or any other COVID-19 issue, please contact NFC’s COVID-19 Response Team as we are closely monitoring the rapidly changing legal landscape relating to this global pandemic. Please feel free to reach out to the NFC Attorney with whom you typically work or call us directly.