Paid Leave and Coronavirus — Part 21: New York Legislature Passes COVID-19 Vaccine Paid Leave Law

Seyfarth Synopsis: Earlier this month, the New York State Legislature passed a bill that would require employers to provide every employee a paid leave of absence for each COVID-19 vaccine injection they receive. The paid leave of absence would need to cover a sufficient period of time, not to exceed four hours per COVID-19 vaccine injection. Outside of a few potential caveats (see below), the entire leave period provided for in the bill would be in addition to any other leave the employee is entitled to, including, but not limited to, paid sick leave under the New York State Paid Sick Leave (“NYPSL”) Law. If signed into law by Governor Andrew Cuomo, which is expected, the bill would become effective immediately and expire on December 31, 2022.

The COVID-19 vaccine paid leave bill is the latest addition to the New York State and larger state and local paid leave patchwork, both of which have become increasingly difficult for employers to navigate in light of the COVID-19 pandemic. If enacted, the bill would codify the leave mandate by adding a new section 196-C to Article 6 of the New York Labor Law (“NYLL”).[1] As noted above, New York employers would be required to provide their New York employees with a paid leave of absence for a sufficient period of time, not to exceed four hours, per vaccine injection to be vaccinated for COVID-19.[2] Employees must be paid their regular rate of pay during COVID-19 vaccine leave, which is fully funded by the employer.

In light of the three vaccines authorized by the Food and Drug Administration (“FDA”) at this time -- the Pfizer and Moderna vaccines, which each require two injections, and Johnson & Johnson’s version, which requires one injection -- employees receiving the vaccine will be entitled to up to four or eight hours of paid leave depending on which COVID-19 vaccine they receive. If this bill is signed into law, it is not clear whether additional paid leave would be required if the FDA subsequently determines that booster injections will be needed either in light of COVID-19 variants identified in the U.S. or diminished vaccine efficacy over time.

COVID-19 vaccine paid leave under the bill would be required in addition to any other paid leave to which the employee is entitled. This includes, but is not limited to, paid sick leave under the NYPSL law or any leave pursuant to a CBA (although the bill does include a CBA waiver option).[3]

Employees may be entitled to more paid leave for COVID-19 vaccine injections if their employer provides a greater number of hours pursuant to a CBA or otherwise authorizes more vaccine-specific paid leave. It appears that a CBA provision or employer policy that provides greater amounts of COVID-19 vaccine paid leave would run concurrently with the leave provided by this bill. Notably, the bill states that the COVID-19 vaccine leave requirements can be waived by a CBA, however, for the waiver to be valid, it must explicitly reference section 196-C of the NYLL.

In addition, as employers may expect, the bill would prohibit discrimination or retaliation against employees who exercise their rights under the same, including but not limited to, requesting or obtaining a leave of absence to be vaccinated for COVID-19. In addition to the points flagged above, the law is silent on permissible employer notice and documentation requirements for employees requesting and taking COVID-19 vaccine leave.

Finally, and as flagged above, there are a number of gray areas with this bill. Some of these additional uncertainties include: (a) whether the bill, which will take immediate effect assuming it is signed into law, will have retroactive effect to employees who received a COVID-19 vaccine prior to the effective date; (b) if COVID-19 vaccine paid leave does have retroactive effect, how employers should handle other paid time off that may have been used by an employee for their vaccine-related time off; (c) whether employee efforts to secure a vaccine appointment prior to actually attending their vaccine injection appointment are covered; and (d) whether unused COVID-19 vaccine paid leave must be cashed out upon separation of employment.

With the COVID-19 and paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with New York State and local COVID-19 and non-COVID paid sick leave laws, and paid leave requirements more generally. Consult Seyfarth’s COVID-19 Resource Center for updated information regarding the rapidly evolving COVID-19 situation and its impact on the workplace.

To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list. Companies interested in Seyfarth’s paid sick leave laws survey should reach out to paidleave@seyfarth.com.

[1] While not completely clear at this time, because the bill would add a new section to Article 6 of the NYLL, it is likely that certain definitions included in Article 6 that are generally applied throughout the Article would be applied to the relevant terms used in the COVID-19 vaccine paid leave bill. These include definitions of “employee” and “employer.” The NYLL defines the former as “any person employed for hire by an employer in any employment.” The NYLL defines the latter as “any  person, corporation, limited liability company, or association employing  any  individual in any occupation, industry, trade, business or service.”

[2] As noted above, the bill’s COVID-19 vaccine paid leave mandate would cover a maximum of four hours of time off per vaccine. However, employees may still be entitled to use paid sick leave in connection with their vaccination to the extent they are feeling side effects in the days following the injection, as both the NYPSL law and New York City Earned Safe and Sick Time Act permit use of leave in the event of physical illness.

[3] Employers with employees in New York should particularly keep in mind their paid sick and safe leave obligations under the following additional mandates: (1) The New York State COVID-19 Emergency Leave Law; and (2) the New York City Earned Safe and Sick Time Act (“ESSTA”). Westchester County, NY employers remain subject to at least the local safe time mandate. Despite no known explicit action County legislature, the County Human Rights Commission, which aids in enforcement of both the sick and safe time mandates, posted language on its Earned Sick Leave Law webpage suggesting that the County sick leave ordinance is no longer in effect in light of the statewide general sick leave mandate while its separate Safe Time Leave Law remains in effect.