In late March 2021, the New York State Department of Labor (DOL) issued much anticipated guidance on New York state’s new COVID-19 vaccine leave law. The law, which was signed by Governor Cuomo and went into effect on March 12, 2021, requires employers to provide up to four hours of paid leave upon request to employees who work in the state of New York and are scheduled to receive a COVID-19 vaccine. Under the law, an employee is entitled to this paid leave for each dose of the vaccine that the employee receives. Employers with a CBA may provide a greater number of paid hours to be vaccinated, and private employers may waive the requirements of this law through the terms of a CBA, provided the agreement’s language expressly waives the law.
The guidance provides the following clarification for employers:
- Leave for Employee’s Own Vaccination. The guidance confirms that employees are only entitled to paid leave under the law to receive their own COVID-19 vaccine. As a result, employees may not request or receive paid leave to assist a relative or other person in getting a vaccine.
- Notice and Proof of Vaccination. The guidance states that the law does not prohibit employers from requiring proof of vaccination to support a request for paid leave. Nor does the law prohibit employers from requiring advanced notice from employees for any period of paid leave. However, the guidance notes that employers should remain mindful of any confidentiality requirements related to vaccination records.
- Substitution of Other Paid Leave. The guidance confirms that the law does not allow employers to substitute an employee’s other existing leave to cover a period of absence for COVID-19 vaccination. As a result, employers may not require employees to use accrued vacation, sick leave or other paid time off to satisfy the new paid leave requirements.
- Retroactive Application. The law itself did not state whether the paid leave requirements apply to employees who received vaccine doses prior to the law’s March 12, 2021 effective date, but the guidance confirms that the law does not apply retroactively. However, employers are still free to voluntarily provide retroactive paid leave to such employees.
The law remains in effect until December 31, 2022.
Next Steps for Employers
New York employers should take steps to ensure that they have effective procedures in place to manage employee requests for COVID-19 vaccination leave. All employers who are considering a workplace vaccination mandate should be prepared to provide paid leave to employees who obtain COVID-19 vaccines to return to the workplace. As with any other request for medical documentation, whether related to leave or workplace accommodations, employers should also ensure that appropriate confidentiality protections are applied to proof of vaccination or other documentation obtained from employees and that any confidential information is kept in a confidential file which is separate from an employee’s general personnel file.
Employers are encouraged to consult with legal counsel to work through questions that may arise, update existing policies, and prepare supervisory employees on how to handle requests for paid COVID-19 vaccination leave.