Publication

New York State has enacted new laws providing for job-protected leave for all employees who receive COVID-19 vaccination(s) (“Paid Leave”). Specifically, on March 12, 2021, the New York legislature passed Session Law A. 3354-B (the “Bill”), amending both the New York Civil Service Law (“Civil Service Law”) and the New York Labor Law (“Labor Law”) to include temporary provisions for the paid leaves of absence. This covers both public and private employees, as well as other civil servants who receive a COVID-19 vaccination during their regularly-scheduled work-day.[1] Specifically, the Bill requires all New York employers to provide up to four hours of Paid Leave, for each COVID-19 vaccination shot received, or eight hours total, at an employee’s normal rate. Importantly, the Bill explicitly prevents employers from charging these absences to any other leave, such as under the Family Medical Leave Act, 29 U.S.C.A. § 2601 (“FMLA”) or New York’s Paid Sick Leave, Labor Law § 196-b (“Paid Sick Leave”). These amendments were effective immediately upon signing, but do not apply retroactively, and expire by statute on December 31, 2022.

The Bill further recognizes that employees may be entitled to more than four hours of Paid Leave for a COVID-19 vaccination shot if provided for under a collective bargaining agreement and include provisions that ensure collective bargaining agreements control in those circumstances. The Labor Law also includes a provision that allows employees to waive their rights under § 196-c via a collective bargaining agreement, so long as the agreement “explicitly references” § 196-c.

Although not codified directly into either the Civil Service Law or Labor Law, the Bill also contains an anti-retaliation provision, which protects “any employee [who] has exercised his or her right[ ] . . . [to] request[ ] or obtain[ ] a leave of absence to be vaccinated for COVID–19.” NY LEGIS 77 (2021), 2021 Sess. Law News of N.Y. Ch. 77 (A. 3354-B).[2] It is unclear what penalties may apply should an employer violate this provision, however both the Civil Service Law and Labor Law already possess their own anti-retaliation provisions, which may be instructive.[3]

Coverage Under Section 196-c of the Labor Law

Labor Law § 196-c covers “every employee” without further guidance. This may leave some private employers asking whether the new paid leave covers non-full-time employees, such as part-time employees and/or seasonal employees. The short answer is likely yes.

As an amendment to the Labor Law, it is fair to assume that § 196-c uses the same definition of the word “employee” as is used in the other sections of Labor Law Article 6 – Payment of Wages. To that end, § 190(2) defines employee broadly as “any person employed for hire by an employer in any employment.”[4] This typically includes both part-time and seasonal employees. See Kim v. Kum Gang, Inc., No. 12 CIV. 6344(MHD), 2015 WL 2222438, at *26 (S.D.N.Y. Mar. 19, 2015) (finding Labor Law’s wage protections applied to part-time banquet hall employees).

The New York Department of Labor's "DOL" administration of Paid Sick Leave is also instructive, as it too involved an amendment to the Labor Law. See Labor Law § 196-b. According to the DOL’s “frequently asked questions” guide, Paid Sick Leave covers “[a]ll private sector workers in New York State . . . regardless of industry, occupation, part-time status, overtime exempt status, and seasonal status.” [5]

Given the DOL’s liberal interpretation of “employee” under Paid Sick Leave, employers should be cautious in denying a COVID-19 Paid Leave request on this basis, unless genuine questions exist concerning whether the person requesting the paid leave is an employee or independent contractor. Determining whether an individual is properly classified as an employee or an independent contractor should be addressed with advice of counsel and human resource professionals.

Advice for Employers Implementing COVID-19 Vaccination Paid Leave

Both employers and employees will likely have questions regarding the administration of the new Paid Leave and how employers will incorporate it into their current leave policies. Below are some factors to consider when implementing the new Paid Leave:

• May employers ask for proof of a vaccination appointment or proof of vaccination?

According to the DOL Guidelines, the language of the Bill does not prohibit employers from requiring proof of vaccination before an employee can claim Paid Leave under these amendments. The better approach is to grant and pay the requested leave and request a copy of the vaccine record for the employer’s records. The EEOC has supported employers inquiring about an employee’s vaccination status and requesting a copy of the vaccine record as this is not a disability related inquiry.

That said, employers should still use caution in requesting proof, even for this limited purpose, as it still runs the risk of eliciting other confidential health information without a job-related reason. This may violate other equal employment opportunity statutes such as the New York State Human Rights Law, or the New York City Human Rights Law, among others. If an employer does require proof of vaccination, employers should remind employees to ensure the copy of the vaccine record does not include any confidential medical information and should only show the employee’s name, date of birth, manufacturer, date of first and second dose and the name of the vaccine administrator. If an employee provides a vaccine record that does contain medical information, it should be kept strictly confidential. Whichever policy an employer chooses, it must remain consistent in its application, meaning an employer should not ask for proof of vaccination from some employees and not others, if its policy is normally not to require proof, or vice-versa.

• Can an employee ask for paid leave to recover from possible side-effects of receiving a COVID-19 vaccination, or is paid leave limited to the administration of the vaccination?

Unfortunately, neither the text of the Bill, nor the current FAQs from the Department of Labor, provide a concrete answer. Given the broad application of the Bill, and limited guidance presently available, it is possible that a court or administrative agency interprets the statutes liberally to encompass needs outside the actual vaccination time but still related to the administration of the vaccination. Therefore, Employers should exercise caution in denying an employee’s request to use this Paid Leave, or a portion of the total four hours, to deal with any side-effects from receiving a COVID-19 vaccination, as the Bill may be broadly interpreted to include protected Paid Leave for recovering from the vaccination.

For example, if an employee receives a vaccination shot an hour before work, but is experiencing temporary side-effects, an employer may be required to provide the employee the full four hours of paid leave to recover. It will be difficult for employers to challenge whether an employee needs a full four hours of leave and not run afoul of the Labor Law’s retaliation provision (see Labor Law § 215) or other equal employment opportunity laws. Because the paid leave is limited to a total of two, four-hour leaves (eight hours total), employers should prepare to accommodate most, if not all, requests up to eight hours.

Additionally, employers should be careful not to encourage employees to get vaccinated during off-work hours. This too could be interpreted as discriminatory and/or retaliatory.

• What if an employee returns to work before the four hour limit?

If an employee takes paid leave to get a vaccination shot but voluntarily returns to work before the four hour limit, the employee should only be entitled to compensation for the actual time taken. The text of the statute supports this conclusion, as the phrase “not to exceed four hours per vaccine injection” clearly contemplate absences of less than four hours. Labor Law § 196-c. Thus, if an employee returns from receiving their vaccination shot before the four hour limit, the employee should be compensated only for the time actually used. If, however, the employee uses the full four hours, employers should be cautious before inquiring further as to how the time was spent, in line with the above precautions.

• Can the leave be used to accompany a family member to a vaccination appointment?

Although the amendments are not explicit, the DOL Guidelines clearly states that “[t]he [P]aid [L]eave granted by this law is only available to the employee for their own receipt of COVID-19 vaccine. This does not mean, however that a request for leave to accompany a family member to a vaccination appointment is not covered by another available leave, such as New York’s Paid Family Leave.[7]

Please let us know if your business needs help navigating employers’ new obligations in light of the ongoing COVID-19 pandemic.