By Joseph S. Brown, Esq.
In mid-March, New York passed a Paid Vaccination Leave Law requiring private and public sector employers to provide employees with up to four hours of excused leave per injection of the COVID-19 vaccine that will not be charged against any other leave the employee has earned or accrued. The Paid Vaccination Leave Law, which you can read about here, became effective on March 12, 2021 and will expire on December 31, 2022.
New York just provided guidance in the form of Frequently Asked Questions (FAQS) that can be accessed here. While many questions remain unanswered, the FAQs explain and reemphasize certain points as summarized below:
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Coverage: For purposes of this law, employers include any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service.
Because neither the Paid Vaccination Leave Law nor the FAQs distinguish between full-time and part-time employees, the safer practice is to provide part-time employees with the same level of leave and rate of pay specified under the law.
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Not Retroactive: If an employee got vaccinated prior to March 12, 2021, the employee is not eligible for Paid Vaccination Leave. But the FAQs point out that “nothing in the law prevents employers from voluntarily providing employees with such benefits retroactively.”
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Employees Eligible for Up to 4 Hours of Paid Leave for Each Injection: For example, 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.
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No Substitution: Employers cannot deduct the time from any other benefit time, such as New York State’s Paid Sick Leave or New York City’s Paid Sick Leave Law.
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Leave Cannot Be Used to Assist Another Person in Getting Vaccine: The paid leave granted by this law is only available to the employee for their own receipt of COVID-19 vaccine.
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Notice: The law does not prevent an employer from requiring the employee to provide advance notice of the need for leave, however, the FAQs provide no details about what type of notice would be deemed reasonable.
In short, it appears that employers may require employees to provide notice of a scheduled vaccine appointment in a manner consistent with company’s regular notice procedures.With that said, employers are well advised to be flexible and only require reasonable notice under the circumstances in a situation where an employee gets a vaccination appointment on short notice due to a cancellation.
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Employers Can Require Proof of Vaccination: The FAQs simply state that law does not prevent an employer from requiring proof of vaccination, but no details are provided.
While an employer can require proof of vaccination, we remind employers of the guidance from the U.S. Equal Employment Opportunity Commission that it may want to “warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.” In other words, employers are well advised to make sure they are requiring only proof of vaccination and to avoid asking questions that elicit information about an employee’s medical information.
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com.
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Joseph S. Brown – [email protected]
Ann E. Evanko – [email protected]
Katherine L. Wood – [email protected]
