On March 12, 2021, New York State enacted a law that requires all employers to provide their New York employees with up to four hours of paid time off per injection to receive a COVID-19 vaccine. At the time of enactment, the law did not provide guidance on certain key issues. Recently, the New York State Department of Labor published answers to some questions that many employers have been asking.
Covered Employers
All employers, including individuals, corporations, limited liability companies, and associations, regardless of size, are required to provide paid leave under the law.
Number of Paid Leave Hours
The guidance states that employers must provide paid leaves of absence for “sufficient period[s] of time, not to exceed four hours per vaccine injection.” While the guidance notes that the maximum paid leave period for a single injection is four hours, it also states that the law fails to define the term “sufficient period of time.”
Absent further clarification from the New York State Department of Labor, some employers might want to consider adopting a conservative approach that would guarantee four hours of paid leave time per injection, unless and until an employee suggests that less time is needed.
Use of Leave
Employees can use this leave only for the receipt of their own COVID-19 vaccinations. Employees cannot use the paid leave provided under this law to assist other individuals in receiving the vaccine.
Notice
The law does not prohibit employers from requiring that employees provide notice before taking paid leave to receive COVID-19 vaccines. However, employers might want to consider the notice provisions under similar laws (e.g., New York State’s paid sick leave law) when deciding whether to require a certain amount of notice.
Documentation
The guidance clarifies that an employer is not prevented from requiring proof of vaccination. “However, employers are encouraged to consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination.”
Retroactivity
Only employees who receive vaccinations on or after the law’s effective date of March 12, 2021, are eligible for the paid benefits.
Key Takeaways
In light of this guidance, New York State employers may want to consider the following:
- reviewing the above requirements to ensure that practices comply with the law’s obligations;
- determining whether and to what extent to request or require employee notice or documentation of vaccination;
- reviewing payroll practices to ensure they align with the requirements of the law and corresponding guidance; and
- ensuring supervisory and managerial employees, as well as human resources professionals, are aware of and implementing the requirements of the law.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
