As discussed in our prior advisory, Governor Cuomo signed legislation on March 12, 2021, that provides up to four hours of paid leave for New York employees in connection with the receipt of a COVID-19 vaccine. The New York State Department of Labor recently issued guidance on the new leave that addresses four significant open questions.
First, the guidance clarifies that this leave is only available for an employee's own receipt of the COVID-19 vaccine. Employees are not entitled to leave for assisting a relative or other person in getting their COVID-19 vaccine.
Second, the guidance indicates that the law does not prohibit an employer from requiring notice before an employee takes this leave. Nor does the law prohibit an employer from requiring proof of vaccination (though employers must consider any confidentiality requirements applicable to collecting or retaining such medical-related documentation).
Third, the guidance makes clear that this leave is not retroactive. Thus, the leave is only required to be provided to employees who receive a COVID-19 vaccination on or after March 12, 2021.
Fourth, the guidance indicates that the amount of leave available depends on the type of COVID-19 vaccination."If a COVID-19 vaccine requires two injections, then the employee would be entitled to two periods of paid leave of up to four hours each (which could be up to eight hours in total).”
The legislation and the guidance are silent as to: (i) whether the employer is permitted to require the employee to schedule the vaccination outside of normal work hours or at a time when the absence presents the least disruption to work operations; and (ii) how the paid leave applies to exempt employees.
With respect to the scheduling of the vaccine, employers can ask employees to select a vaccine appointment when it might be least disruptive for the employer. However, given that the demand for the vaccine exceeds the supply available, there is likely very little control that employees have over vaccination schedules at this time.
As for exempt employees, employers must pay these employees their full salary for the week if the employee has worked any part of the week, even if the employee takes four hours to get a vaccine injection.
Employers are encouraged to consult counsel as they navigate employee leave relating to COVID-19 vaccinations.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.