Earlier this month, a bill requiring public and private employers to provide paid leave for employees receiving the COVID-19 vaccine was passed by the New York State Assembly and Senate. On Friday March 12, the legislation was signed by Governor Cuomo, making it effective immediately. The law will remain in effect from the date of signing (March 12, 2021) until December 31, 2022, when it will automatically be repealed.
The law requires employers to provide employees with “sufficient time” (up to four hours, per injection) to receive the COVID-19 vaccine. Time off under this law must be paid at the employee’s regular rate of pay. For those workplaces with collective bargaining agreements (CBAs), the requirements under this law may be waived providing that the CBA explicitly references NY Labor Law 196-C.
Notably, leave offered under this law cannot be charged to any employer-provided paid time off (i.e., PTO/vacation or personal leave) or to leave required under the state’s paid sick leave law. Further, employers may not discriminate, retaliate or interfere with an employee exercising their rights under the law.
The bill does not currently address questions such as whether employers can ask for proof of vaccination and/or what proof may be required; if employees can use this paid leave for recovery from any side effects; if employers can direct when an employee schedules a vaccine appointment; if there will be any requirement to apply this retroactively to employees who have already received the vaccine; or its concurrence with leave voluntarily offered under FFCRA.
Next Steps for Employers
Employers should be prepared to address requests for leave and provide paid leave immediately.
The state may issue guidance or frequently asked questions (FAQs). Absent any guidance or FAQs from the state, employers who have concerns or questions about the administration of this leave should consider the spirit of the law which is to encourage employees to get vaccinated; as such, decisions related to the allowance of leave should be approached with great flexibility. In the interim, employers may also continue to rely on current guidance regarding vaccination, such as EEOC guidance or should consult with their legal counsel.
HR Works will continue to monitor this legislation and will communicate any new developments as needed.