Key Takeaways

• Gov. Andrew Cuomo signed a piece of legislation into law that requires public and private sector employers in New York to provide leave to employees who receive the COVID-19 vaccination

• The bill grants employees paid time off to receive the vaccine, without having to exhaust their leave accruals, and will take the state one step closer to achieving herd immunity against COVID-19

• The law went into effect immediately on March 12, 2021 and expires December 31, 2022

On March 12, 2021, Gov. Andrew Cuomo signed a piece of legislation into law that requires virtually all employers in New York to provide leave to employees who receive the COVID-19 vaccination.  This legislation mirrors the existing leave of up to four hours that civil servants are granted for cancer screening pursuant to Section 159-b of Civil Service Law. The lawmakers’ reasoning for the bill is that granting public and private employees official time off to receive the vaccine, without having to exhaust their other leave accruals, will take the state one step closer to achieving herd immunity and ending the war against COVID-19.

Covered Employers

Public employers are covered by the law through the addition of section 159-c to the civil service law and private sector employers are covered through the addition of section 196-c of the labor law. All employers are covered, regardless of size, number of employees, revenues, or industry.

Leave Amounts

The law grants employees a “sufficient period of time,” up to four hours of paid leave, per injection to receive the COVID-19 vaccine. Notably, some of the available vaccines require one dose, while others require multiple doses.

Pay Rate

Under the law, employees must be paid at their regular rate of pay.

Interaction with Other Leave

The leave provided under this law is an unfunded mandate for employers. Moreover, employers are prohibited from charging against any other leave, such employee is otherwise entitled to. By way of example only, employers cannot force an employee to utilize leave they are already entitled to, pursuant to the New York Paid Sick Leave law that became available to employees on January 1, 2021.

Collective Bargaining Agreement

The law is not meant to disrupt already existing leave to receive the vaccination that was bargained in good faith between unions and employers. Accordingly, to the degree that such leave is already provided for up to four (or more) hours of COVID-19 leave for vaccination, those collective bargaining agreement provisions are unaffected.

Additionally, nothing in this law is to be deemed to impede, infringe, diminish, or impair the rights of employees under any law, regulation, or collective bargaining agreement. This type of language has become commonplace in any type of New York law relating to the employer-employee relationship.

Moving forward, the law permits employers and unions to waive employee rights under this law provided that the law is expressly referenced in the collective bargaining agreement. For example, it is conceivable that employees value some other term and condition of employment (e.g., a bonus) more than the leave under this law. Under the law, employees can seemingly negotiate a different benefit if they wish to.

Retaliation Prohibited

As with virtually every leave law, this law expressly includes an anti-retaliation provision that protects employees from retaliation. Specifically, the law states that no employer shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because such employee has exercised their rights afforded under this act, including, but not limited to, requesting or obtaining a leave of absence to be vaccinated for COVID-19.

Effective Date

The law went into effect immediately on March 12, 2021 and expires December 31, 2022. The 2022 end date is seemingly odd given that it appears most, if not all, of New Yorkers that wish to receive the vaccination will have it in or around summer 2021.

Open Questions

As with many new laws, there remains gaps in the legislation and unanswered questions. The law does not discuss what, if any, efforts employees need to make to schedule vaccination appointments outside of their normal work schedule. The law also does not include any type of exemption for employers that provide onsite vaccination for employees. The law is silent on what, if any, documentation employers may require to substantiate that they have actually received the vaccination. It also does not expressly state that an employer may discipline any employee who falsifies documentation relating to this leave or otherwise lies about the reason for the leave. Finally, the law appears to only be triggered for receiving the vaccination (and not for any potential side effects of the injection), but such clarification could have been added to the text of the law. These practical real-world application issues are the types of gaps that lawmakers frequently miss when drafting legislation. New York State’s Department of Labor may issue guidance and/or regulations further interpreting the law.

In the meantime, employers can expect many questions from employees in relation to this leave. By way of example, employees that already received the vaccination using their own paid time off may seek to be credited with this newly provided leave law.

We encourage employers to seek legal counsel when attempting to address any leave issues relating to the application of this new law. For more information or immediate guidance, contact:

• Christopher P. Maugans
• Kristin Klein Wheaton
• Scott R. Green
• Caroline J. Berdzik
• Peter J. Woo
• Or another member of the Employment and Labor practice