Category: Wage & Hour

NY COVID-19 Vaccination Leave FAQs

NY COVID-19 Vaccination Leave FAQs

The New York Department of Labor has commented on the State’s law granting all employees paid leave to receive COVID-19 vaccinations. The guidance comes in the form of Frequently Asked Questions available on the agency’s website. These NY COVID-19 Vaccination Leave FAQs address some vital questions, but they leave others unanswered.

NY COVID-19 Vaccination Leave Basics

A law signed March 12, 2021, permits all employees in New York the right to take off up to 4 hours per injection to become vaccinated against COVID-19. The law applies to both public sector (government) and private sector (non-government) employees.

FAQ Coverage

To encompass all employees, the law added separate provisions to both the NYS Labor Law and Civil Service Law.

The NYS Department of Labor has no direct authority concerning the Civil Service Law. Thus, its COVID-19 vaccination leave FAQs only apply to the Labor Law provisions and private-sector workplaces.

Key Questions Answered

Amount of Leave

The FAQ document confirms that if a vaccine requires two injections, the employee could take paid leave twice. Each time could be for up to 4 hours, for a total of 8 hours over the two shots.

Basis for Leave

The DOL acknowledges that the leave is only available for the employee to get vaccinated. There is no leave mandate to permit an employee to assist anyone else, such as a family member, in obtaining a vaccination.

Notice of Leave

The COVID-19 vaccination leave FAQs at least recognize that employers may require notice before an employee takes time off to get the vaccination. Unfortunately, there is no further comment on the nature or timing of such notice.

Documentation

Perhaps the most significant aspect of the FAQ document is the confirmation that the law does not prohibit employers from requiring proof of vaccination from their employees who take the leave.

But, the DOL is careful to hedge by advising that “employers are encouraged to consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination.”

Unanswered Questions

Noting that the Labor Law permits employees to take a “sufficient period of time” off for each injection, the FAQ document doesn’t attempt to define this term. The DOL merely reiterates that the employee is not entitled to more than 4 hours for each shot.

As mentioned above, the DOL has also thus far declined to suggest how much notice an employer may require. The law arguably permits employees to leave work at a moment’s notice to receive the vaccination.

Overall, the NY COVID-19 Vaccination Leave FAQs offer little beyond a literal reading of the new law. Employers facing questions about implementation and procedure should consider other applicable laws, such as those surrounding obtaining and using employee medical information. In some cases, unionized companies may need to negotiate some issues related to administering the leave requirement with unions.

As an additional reminder, employers cannot deduct paid COVID-19 vaccination leave from any other benefit time, including New York Paid Sick Leave.

 

Click here for the full NYS DOL FAQs on Paid Leave for COVID-19 Vaccinations.

 

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COVID-19 Vaccination Leave

New York Employees Get Paid COVID-19 Vaccination Leave

Beginning March 12, 2021, New York employers must give employees time off to be vaccinated against COVID-19. New laws gives all employees in all workplaces across New YorkState the right to paid COVID-19 vaccination leave of up to 4 hours per injection. Public sector (government) employees gain this new leave through the state’s Civil Service Law. The state’s Labor Law now provides it to private sector (non-government) employees.

Covered Employees

The new laws combine to provide paid COVID-19 vaccination leave to all employees, regardless of employer size or industry.

Amount of Leave

Employees may take up to 4 hours off per vaccine injection. Currently, some vaccines require two injections spaced multiple weeks apart. Another is completed with a single shot.

The laws do not specifically address the possibility of future vaccinations, such as booster shots or re-vaccination. As written, it’s possible that any such shots designed to innoculate someone against COVID-19 would create a paid leave entitlement.

Paid Leave

Employers must pay employees their “regular rate of pay” for the time off. They cannot deduct the time from any other benefit time, including New York State’s mandated sick leave.

Retaliation

Employers may not take any adverse employment actions against an employee for exercising their rights to take paid COVID-19 vaccination leave.

Effective Dates

The new requirements are in place as of March 12, 2021, but will expire December 31, 2022.

Open Questions

This legislation is silent on several critical details.

It does not clarify whether or how employees must document that they actually received the vaccine. It also doesn’t address whether employers have any control over when their employees take the time off (perhaps suggesting it’s entirely up to each employee).

There is no exception for an employer who makes on-site vaccination available to employees.

Because public and private employees obtain the leave right under separate laws, it’s not clear whether a single agency could issue overall further guidance. The Department of Labor may comment on the provisions affecting private-sector employees. But it may lack jurisdiction over government workplaces.

 

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2021 New York Minimum Wage

2021 New York Minimum Wage

Do you know the 2021 New York minimum wage? Actually, there are different minimum wages for different parts of the states and different industries. Employers must be ready before the end of the year to meet the new requirements that apply to their employees.

The 2021 New York minimum wage rates are shaded in blue in the tables below. Note that the changes take effect on the last day of the year, not January 1st.

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Standard New York Minimum Wage

The 2021 New York minimum wage varies by geographic location, employer size (where applicable), and sometimes by industry.

For most private employers, the 2021 New York minimum wage in the following chart applies. This chart also applies for non-teaching employees of public school districts or a BOCES. However, there is no New York minimum wage for other employees of public (governmental) employers (but the federal minimum wage of $7.25 does apply).

General Minimum Wage Rate Schedule
Location12/31/1912/31/2012/31/21
NYC – Large Employers (of 11 or more)$15.00$15.00
NYC – Small Employers (10 or less)$15.00$15.00
Long Island & Westchester$13.00$14.00$15.00
Remainder of New York State$11.80$12.50TBD*

* Annual increases for the rest of the state will continue until the rate reaches a $15 minimum wage. Starting in 2021, the annual increases will be published by the Commissioner of Labor by October 1. They will be based on percentage increases determined by the Director of the Division of Budget, based on economic indices, including the Consumer Price Index.

Minimum Wage for Tipped Employees in the Hospitality Industry

New York State has separate minimum wage rules for employees in the hospitality industry. These rules apply to businesses running a restaurant or hotel.

The minimum wage rates for most non-tipped employees in the hospitality industry are set as per the schedule above. However, employers may count a portion of certain tipped employees’ gratuities toward the minimum wage requirements. This is known as a “tip credit.”

New York State has two separate cash wage and tip credit schedules for tipped hospitality employees who qualify as “food service workers” and “service employees.”

Food Service Workers

A food service worker is any employee who is primarily engaged in serving food or beverages to guests, patrons, or customers in the hospitality industry who regularly receive tips. This includes wait staff, bartenders, captains, and busing personnel. It does not include delivery workers.

Hospitality Industry Tipped Minimum Wage Rate Schedule (Food Service Workers)
Location12/31/1912/31/2012/31/21
NYC – Large Employers
(of 11 or more)		$10.00 Cash

$5.00 Tip

$10.00 Cash

$5.00 Tip

NYC – Small Employers
(10 or less)		$10.00 Cash

$5.00 Tip

$10.00 Cash

$5.00 Tip

Long Island & Westchester$8.65 Cash

$4.35 Tip

$9.35 Cash

$4.65 Tip

$10.00 Cash

$5.00 Tip

Remainder of New York State$7.85 Cash

$3.95 Tip

$8.35 Cash

$4.15 Tip

Service Employees

The next schedule applies to other service employees. A service employee is one who is not a food service worker or fast food employee who customarily receives tips above an applicable tip threshold (which also follows schedules, not shown here).

Hospitality Industry Tipped Minimum Wage Rate Schedule (Service Employees)
Location12/31/1912/31/2012/31/21
NYC – Large Employers
(of 11 or more)		$12.50 Cash

$2.50 Tip

$12.50 Cash

$2.50 Tip

NYC – Small Employers
(10 or less)		$12.50 Cash

$2.50 Tip

$12.50 Cash

$2.50 Tip

Long Island & Westchester$10.85 Cash

$2.15 Tip

$11.65 Cash

$2.35 Tip

$12.50 Cash

$2.50 Tip

Remainder of New York State$9.85 Cash

$1.95 Tip

$10.40 Cash

$2.10 Tip

Fast Food Minimum Wage

Non-exempt employees at some “fast food” restaurants are subject to an alternative minimum wage schedule.

This schedule applies to employees who work in covered fast food restaurants whose job duties include at least one of the following: customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning, or routine maintenance.

These special New York minimum wage rates only apply to fast food restaurants that are part of a chain with at least 30 restaurants nationally.

The final scheduled increase for fast food workers outside of New York City takes effect mid-year on July 1, 2021.

Fast Food Minimum Wage Rate Schedule
Location12/31/1912/31/207/1/2021
New York City$15.00 $15.00
Outside of New York City$13.75$14.50 $15.00

Note: No tip credit is available for fast food employees.

Overtime Threshold

Along with increases to the 2021 New York minimum wage, the salary requirement to maintain some overtime exemptions will also increase.

The salary threshold for New York’s executive and administrative exemptions go up on December 31st. These amounts are all higher than the federal Fair Labor Standards Act (FLSA) threshold of $684/week. But most New York employers (other than governmental entities) must satisfy the higher New York threshold to ensure full overtime exemption.

There is no salary requirement for New York’s professional exemption. But employers must also satisfy the FLSA threshold for most professional employees. Doctors, lawyers, and teachers do not have a salary requirement for exemption.

Executive & Administrative Exemption Weekly Salary Threshold Schedule
Location12/31/1912/31/2012/31/21
NYC – Large Employers (of 11 or more)$1,125.00$1,125.00
NYC – Small Employers (10 or less)$1,125.00$1,125.00
Long Island & Westchester$975.00$1,050.00$1,125.00
Remainder of New York State$885.00$937.50TBD*

Prepare Now for the 2021 New York Minimum Wage

New York employers should review their compensation levels and make necessary changes by December 31, 2020. Updates might result in increasing an employee’s hourly wage or salary or reclassifying exempt employees to non-exempt if they will no longer meet the exemption salary requirement.

And, remember, the 2021 New York minimum wage rates only last one year in some cases. Companies will have to review this again next year (or sooner).

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