In addition to receiving paid leave to obtain their own COVID-19 vaccinations (discussed in our March 29, 2021, advisory), employees in New York City may now take additional sick leave to get COVID-19 vaccinations for their children or to care for such child who is experiencing temporary side effects from a COVID-19 vaccination.
The new law amends the New York City Earned Sick and Safe Time Act (ESSTA) and applies to all workers in New York City (including full-time, part-time, and temporary workers) of a business or not-for-profit organization of any size.
Under the law, individuals who are parents or legal guardians (or a person who currently stands in loco parentis) of minor children (or an older child with a mental or physical disability) and who are employed by an employer with five or more employees may take four hours of paid sick leave to obtain a COVID-19 vaccine for a child or to care for a child recovering from the effects of a vaccine. Individuals employed by companies with fewer than five employees receive four hours of unpaid child vaccination leave.
The law provides four hours of leave per vaccination and per child. For example, a person who has two children who each receive a two-dose vaccine, and who later receive a booster, would be eligible for 24 hours of leave (12 hours for each child for each shot).
Significantly, this leave is in addition to any sick leave accrued under ESSTA or the New York State Sick Leave Law (SLL).
The bill, enacted by the NYC Council, became law on December 24, 2021, but is retroactive to November 2, 2021 (the date the Centers for Disease Control authorized the COVID-19 vaccine for children ages 5-11), and will expire on December 31, 2022.
This means that anyone now entitled to paid leave under this law who took unpaid leave for a child's COVID-19 vaccination since November 2, 2021, must now be paid for that leave, and any employee who used paid leave accrued under the ESSTA or SLL for a child's COVID-19 vaccination since November 2, 2021 must now have the leave time reinstated.
Notice, Documentation, and Prohibitions
The law contains important provisions that employers need to be aware of, including that:
- Employers may require an employee to provide reasonable notice (of up to seven days, if foreseeable), as well as documentation of a child's vaccination within seven days of the leave.
- An employer cannot require an employee to work additional hours to make up for the time off, nor can an employer require an employee to find a replacement employee to cover their hours.
- In addition, leave under this law cannot be waived in a collective bargaining agreement.
Phase-in Period, Penalties
The law has a 60-day phase-in period (through February 22, 2022) during which the New York City Department of Consumer Affairs and Worker Protection (DCA) will give written notice and a cure period before enforcing the law against employers who do not provide the required COVID-19 child vaccination leave.
After the phase-in period, an employer that fails to pay an employee for protected leave may be liable for a penalty of up to three times the wages that should have been paid or $250, whichever is greater. If an employer denies leave to an employee or improperly charges the leave against the employee's existing safe/sick leave, the employer may be liable for a civil penalty of $500.
Additional civil penalties payable to the City would include a fine of up to $500 for a first violation, up to $750 for each subsequent violation that occurs within two years of any previous violation, and up to $1,000 for succeeding violations.
Summary of COVID-19 Leave Laws
New York's COVID-19 leave laws are summarized in a publication, COVID-19 and Paid Sick Leave - English (nyc.gov), issued by the DCA.
All employers in New York City should review their COVID-19 vaccination sick leave policies to make sure they comply with this new child vaccination leave law. Employers should also pay any employees who took unpaid leave for a covered reason since November 2, 2021, or reinstate paid sick time for employees who used other paid sick leave.
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.