The New York State Department of Labor (“NYSDOL”) has issued guidance on the State’s recently enacted COVID-19 vaccine leave law, which went into effect on March 12, 2021.  As we previously reported, the law requires employers to provide employees with “a sufficient period of time, not to exceed four hours” per dose to be vaccinated for COVID-19. Leave must be paid at the employee’s regular rate of pay and cannot be charged against other leave accruals.

The NYSDOL’s guidance addresses and clarifies a number of details about the new law. Below are the key takeaways:

  • Use of Leave and Employee Coverage: Paid leave is only available for an employee’s own receipt of a COVID-19 vaccine. The law does not provide leave to allow an employee to assist a relative or other person to receive a vaccine. Neither the law nor the guidance addresses the law’s application to part-time employees. However, because the law refers to “every employee,” employers should consider erring on the side of caution and provide leave to both part-time and full-time employees.
  • Amount of Leave: The maximum number of leave hours that an employee is entitled to depends on the number of required COVID-19 vaccine injections. 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 (eight hours in total).
  • Retroactive Application: The law does not create any retroactive benefit rights. Therefore, only employees who were vaccinated on or after March 12, 2021 are eligible for paid leave. However, nothing in the law prevents employers from voluntarily providing employees with such benefits retroactively.
  • Notice and Documentation Requirements: According to the guidance, the law does not prevent an employer from requiring notice or proof of vaccination in order to claim this paid period of leave. However, the guidance cautions employers to “consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination.”
  • Unionized Employers: The rights afforded to employees under this law may be waived by a collective bargaining agreement. However, the agreement must specifically reference section 196-c of the New York Labor Law.

New York’s COVID-19 vaccine law remains in effect until December 31, 2022. We will continue to report on any further developments with regard to this law and other similar leave laws nationwide.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

 

Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Arielle E. Kobetz Arielle E. Kobetz

Arielle Kobetz is an associate in the Labor & Employment Law Department. She assists employers in a wide range of areas, including discrimination, wage and hour, and traditional labor.

Prior to joining Proskauer, Arielle served as a law clerk at the New York…

Arielle Kobetz is an associate in the Labor & Employment Law Department. She assists employers in a wide range of areas, including discrimination, wage and hour, and traditional labor.

Prior to joining Proskauer, Arielle served as a law clerk at the New York City Human Resources Administration, Employment Law Unit, where she worked on a variety of employment discrimination and internal employee disciplinary issues.

Photo of Alex Downie Alex Downie

Alex Downie is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group. He previously worked as a summer associate at Proskauer and as an intern at the Department of Justice.

Alex earned…

Alex Downie is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group. He previously worked as a summer associate at Proskauer and as an intern at the Department of Justice.

Alex earned his J.D. from the University of Virginia School of Law, where he served as the executive editor of the Virginia Law & Business Review. He also volunteered for the school’s employment law clinic, where he assisted with a variety of employment-related matters ranging from employment discrimination to wage and hour disputes.