On November 23, 2021, the New York City (NYC) Council passed a bill amending its Earned Safe and Sick Time Act (ESTA) requiring all private-sector employers to provide their employees with four hours of paid COVID-19 child vaccination leave to accompany their child to receive a COVID-19 vaccine or to care for a child experiencing temporary side effects. The time can be taken for each injection, for each child, in addition to any leave parents are already entitled to under the ESTA.
To take leave, the child must be under the age of 18 or the child must otherwise be incapable of self-care by reason of mental or physical disability.
Concurrence With Other Leave
Paid COVID-19 child vaccination leave must be provided, in addition to, the employee’s accrual or use of existing ESTA and/or any other company provided paid leave. This leave is also required to be offered in addition to the paid leave for COVID-19 vaccinations that an employee is entitled to utilize under state law for their own vaccine injections.
Employers also cannot require employees to work additional hours to make up for the original hours they were unavailable or find another employee to cover their missed working hours, because they used paid COVID-19 child vaccination leave.
Pay During Leave
Leave must be paid at the employee’s regular rate of pay.
Employee Notice and Documentation Requirement
An employer may require reasonable notice of the need to use child vaccination leave. Where the need is foreseeable, an employer may require reasonable advance notice of the intention to use, not to exceed seven days prior to the date leave is to begin. Where the need is unforeseeable, an employer may require an employee to provide notice of the need for the use of leave as soon as practicable.
An employer could also require that within seven days an employee provide documentation that their child was vaccinated.
Retroactive Designation of Leave
Because the law would be retroactive to November 2, 2021, employers may satisfy their obligation to provide leave to an employee who already has taken paid leave for this purpose by compensating the employee no later than the next payday after the bill is signed by the mayor and crediting any previously used leave time back to the employee’s applicable time off bank (i.e., ETSA, vacation/PTO, etc.).
Penalties for Non-Compliance
The law would provide for relief and penalties for a failure to provide COVID-19 child vaccination time but contains a 60-day phase-in period during which the Department of Consumer and Worker Protection would give written notice and a cure period before enforcing against employers who do not provide the new COVID-19 vaccination leave. After the 60-day phase-in period, the Department is entitled to penalize non-compliant employers:
- For each instance of COVID-19 child vaccination time taken by an employee but unlawfully not compensated by the employer at three times the wages that should have been paid or $250, whichever is greater; and
- For each instance of COVID-19 child vaccination time unlawfully denied or charged against an employee’s paid safe/sick time accruals, $500.
The law presumably covers booster shots as there is no distinction in the legislation between primary vaccination series and booster shots.
The requirements of the law cannot be waived by a collective bargaining agreement.
Next Steps for Employers
The approved bill is now before NYC Mayor Bill de Blasio and will take effect immediately upon his signature. The bill would expire and be deemed repealed on December 31, 2022.
New York employers should continue to monitor the status of the law, including the effective date. In anticipation of the mayor’s signature, employers should consider and be prepared to make updates to existing paid vaccine leave policies and ensure the supervisors/managers or those responsible for administering employee leaves are apprised of the law and its requirements.
HR Works will continue to monitor this topic and provide updated information as it becomes available.