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.
On January 20, 2021, the New York State Department of Labor issued new “guidance” regarding COVID-19 sick leave. The two-page document signed by Commissioner of Labor Roberta Reardon purports to relate to the State’s March 2020 law regarding leave for employees subject to a quarantine or isolation order due to COVID-19. However, the DOL pronouncements seem to create new obligations not found in the law.
NYS COVID-19 Quarantine Leave Law
At the beginning of the coronavirus crisis in March 2020, both New York State and the federal government enacted employee leave laws specific to COVID-19. The federal law expired December 31, 2020 (though employers who continue to allow paid leave as the law provided remain eligible for tax credits). The New York law had no expiration date.
The New York COVID-19 leave law was comparatively limited, essentially only creating an employer-paid leave entitlement when employees were placed under a precautionary or mandatory order of quarantine or isolation due to COVID-19. The law is clear that the order must be from a government health authority, not a private medical provider.
The amount of leave required under the New York COVID-19 sick leave law depends on the employer’s size. The smallest private employers (less than 10 employees and net income under $1 million) do not have to provide paid leave. Mid-sized companies (up to 99 employees) must pay for 5 days of leave due to COVID-19 quarantine or isolation. Large private employers (100+ employees) and all public (governmental) employers must provide up to 14 days of paid leave in this situation.
The law also modified the NYS disability and paid family leave programs to supplement the portion of such leaves that employers did not have to pay for directly.
Click here for more on the New York State COVID-19 sick leave law.
Earlier DOL Guidance
In late March 2020, the NYS DOL issued guidance on the new leave law through a State website. This guidance addressed questions such as how to calculate the rate of pay. It also provided new forms for employees to request paid family leave or liability benefits due to a COVID-19 quarantine.
Click here for more on the original New York State COVID-19 sick leave guidance.
New COVID-19 Sick Leave Guidance
The January 20, 2021 guidance from the NYS Commissioner of Labor is initially notable for its format. Rather than a proposed regulatory document or even website guidance as used back in March, these new COVID-19 sick leave parameters appear in a plain .pdf file bearing a DOL logo heading and ending with Commissioner Reardon’s signature and a New York, New York dateline. Overall, this more closely resembles the approach used by the New York Department of Health to put out temporary standards for COVID-19 safety under Governor Cuomo’s numerous executive orders during the pandemic. However, no executive order has granted the DOL this authority.
The document begins by expressly referencing the March 18, 2020 “legislation authorizing sick leave for employees subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.” That legislation grants the Commissioner of Labor “authority to adopt regulations, including emergency regulations, and issue guidance to effectuate any of the” law’s provisions. But, again, this guidance is not in the form of regulations. Even emergency regulations would require more formalities. The law continues that “Employers shall comply with regulations promulgated by the commissioner of labor for this purpose which may include, but is not limited to, standards for the use, payment, and employee eligibility of sick leave pursuant to this act.”
Does the same force apply to a generic “guidance” document? That’s a fair question that could reasonably be answered, “no,” especially since the guidance seems to deviate meaningfully from the terms of the law itself.
Valid or not, the new guidance notes that “All prior guidance remains in effect”. It then includes four numbered paragraphs that seem to address issues that likely have been asked of the DOL about the law.
Return to Work
The DOL confirms that following quarantine or isolation, employees don’t have to be tested for COVID-19 before returning to work. (There is an exception for nursing home staff.) This conclusion seems consistent with the law.
But the guidance goes further to indicate that if an employee does subsequently receive a positive test result, they may not return to work. In that scenario, the employee must continue to isolate. Moreover, the DOL suggests that such an employee will automatically be deemed to be subject to a mandatory order of isolation from the NYS Department of Health and entitled to leave under the NYS COVID-19 sick leave law. This idea of an automatic isolation order appears contrary to the law, which plainly requires the employee to obtain an order from a health department to qualify for leave. The guidance says that, in this situation, the employee only needs to submit documentation from a medical provider or testing facility confirming the positive test result–again, inconsistent with the law.
New Paid Leave Scenario
The DOL also appears to have created an entirely new COVID-19 paid leave requirement not codified in the March 18, 2020 legislation. The guidance document indicates that if an employer requires an employee who is not subject to a quarantine or isolation order to stay home due to exposure or potential exposure to COVID-19, then the employer must pay the employee for all time missed until allowing the employee to return to work or until the employee becomes subject to a quarantine or isolation order. Notably, the DOL doesn’t establish any further exceptions to this new obligation. For example, it doesn’t relieve the employer of the obligation to pay even where an employee recklessly exposed himself to COVID-19.
There is no reasonable way to read this paid leave obligation into the March COVID-19 sick leave law. Nonetheless, employers must either adhere to the DOL’s position or risk having to contest it legally.
Three Strikes and You’re Out
When the New York COVID-19 sick leave law took effect in March 2020, no one anticipated the disease to remain prevalent for as long as it has. There was a general belief that anyone could only become infected once and that a 14-day quarantine or isolation period would eliminate any transmission risk. The way things have worked out, it has unexpectedly become clear that some people may run into multiple quarantines or isolations due to COVID-19. So, how much paid leave do they get?
According to the DOL, employees can qualify for COVID-19 sick leave up to 3 times. And the second and third times only count if based on a positive COVID-19 test.
Right, wrong, or indifferent, the law itself doesn’t say anything about three leave periods or limit any scenario to a positive test. Does the Commissioner of Labor have this much authority to re-write the law? Probably not, but again, who wants to take that risk?
Between a Rock and Hard Place
New York employers are already facing tremendous difficulty applying the array of leave requirements that potentially apply to employees dealing with COVID-19 issues. On the one hand, further guidance from the DOL arguably provides answers to questions companies are facing. On the other hand, it’s highly questionable whether the DOL has the authority to make these pronouncements. Both following and ignoring this latest guidance could create legal problems for employers. Not all of these “interpretations” are in the employees’ favor. So, even doing the right thing according to the DOL could upset an employee who might have a reasonable claim that they were denied rights under the NYS COVID-19 sick leave law.
Perhaps the DOL will clarify its authority, or the State will otherwise confirm the validity of this guidance. For now, however, employers should consult experienced New York employment counsel if confronted by any of the issues addressed by this DOL document.
On December 2, 2020, the New York Department of Labor issued long-anticipated draft regulations under the New York Paid Sick Leave Law. Companies across New York have been preparing for the new law, which becomes operative on January 1, 2021. Earlier informal State guidance left many important questions unanswered. Unfortunately, the same is true of the proposed New York paid sick leave regulations.
The DOL is expected to accept public comments on the proposed regulations before finalizing them. Details on the comment period and whether the DOL will initially implement the regulations on an emergency basis were not included with the original release of the proposed regulations on this NYS website.
Update: The DOL published the proposed regulations in the New York State Register on December 9, 2020. There is a 60-day comment period that will end on February 8, 2021. Final regulations will not be in place until sometime after that.
As drafted, the regulations provide several definitions of terms in the law and address documentation, employee counting, and accrual issues. They do not tackle some critical open questions, including the interplay of the new law and existing collective bargaining agreements.
This webinar provides more details regarding employers’ obligations under the New York Paid Sick Leave Law.
Definitions
The proposed New York paid sick leave regulations define nine terms used in the law.
For the following terms, the regulations reference preexisting definitions/explanations from other NYS statutes:
Domestic Partner
Family Offense
Human Trafficking
Mental Illness
Net Income
Sexual Offense
Stalking
The regulations introduce new definitions for two phrases:
“Confidential Information means individually identifiable health or mental health information, including but not limited to, diagnosis and treatment records from emergency services, health providers, or drug and alcohol abuse prevention or rehabilitation centers. Confidential information also means information that is treated as confidential or for which disclosure is prohibited under another applicable law, rule, or regulation.”
“Preventative Medical Care means routine health care including but not limited to screenings, checkups, and patient counseling to prevent illnesses, disease, or other health problems.”
Documentation
A section with the heading “documentation” expands on statutory restrictions prohibiting employers from seeking information from employees to substantiate their sick leave usage.
The law provides that “An employer may not require the disclosure of confidential information relating to a mental or physical illness, injury, or health condition of such employee or such employee’s family member, or information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of providing sick leave.”
Employers have wondered what, if any, documentation they may require to corroborate sick leaves.
3 or More Consecutive Days
The DOL first draws a bright line based on the length of leave. Employers may not require any verification for leaves of less than three consecutive “previously scheduled workdays or shifts.”
If an employee seeks sick leave for three or more consecutive days, their employer may request limited documentation to substantiate the need for leave.
Limited Documentation
The proposed regulations address this scenario as follows.
Requests for documentation shall be limited to the following:
(1) An attestation from a licensed medical provider supporting the existence of a need for sick leave, the amount of leave needed, and a date that the employee may return to work, or
(2) An attestation from an employee of their eligibility to leave.
It is ambiguous whether the employer can insist on either one of the above categories of documentation. Presumably, many employers would find the doctor’s attestation somewhat more authoritative than the employee’s. But it seems unlikely that such documentation is available for the “safe leave” categories covering absences due to domestic violence and related situations. In those cases, employers likely must accept the employee’s attestation.
The proposed New York paid sick leave regulations further reiterate that “An employer cannot require an employee or the person providing documentation, including medical professionals, to disclose the reason for leave, except as required by law.”
Employee Counts
Some employers have found themselves uncertain how much leave they had to provide employees or whether it had to be paid leave.
Coverage Factors
By law, employers with up to 4 employees must provide employees with at least 40 hours of unpaid sick leave each year. However, employers of this size who had net income over $1 million in the previous tax year must pay employees for this leave.
Employers with between 5 and 99 employees must provide employees with at least 40 hours of paid sick leave each year.
Employers with 100+ employees must provide employees with at least 56 hours of paid sick leave each year.
Neither the law itself nor the State’s initial informal guidance clearly explained how to count employees to determine into which category they fall. Fortunately, the proposed New York paid sick leave regulations expand on this subject.
Counting Employees
Essentially, the DOL proposes that the paid/unpaid and 40/56 hours thresholds will always be determined based on the largest number of employees the employer has had on any day to date within the current calendar year (e.g., 2021, 2022, etc.).
For example, if an employer starts 2021 with 95 employees, they must allow employees to begin accruing up to at least 40 hours of paid sick leave that year. If, however, the company hires more employees, bringing them up to 100 or more on any day, then, at that point, the employer must increase the maximum annual accrual and usage to 56 hours prospectively. The maximum accrual/usage would not fall back to 40 hours for the rest of the year under any circumstances. Even if the company let everyone go except one person, the last employee could still earn and/or use up to 56 hours of paid sick leave that year. However, on January 1, 2022, the employer could reset its obligations based on the number of employees as of that date, subject to future increases during the year.
When the employee count crosses a new threshold, the employer does not have to retroactively give any additional sick time based on hours worked before the employer moved into the new coverage category. But this counting mechanism means that employers close to a new employee threshold should carefully track their employee count and make immediate changes to their sick leave policy when the 5th or 100th employee joins the company.
Who Counts?
The proposed regulations note that employees count toward the total for any day even if they are on paid or unpaid leave, disciplinary suspension, “or any other type of temporary absence . . . as long as the employer has a reasonable expectation that the employee will later return to active employment.” Conversely, employees who have been laid off or separated from employment would not be counted.
Irreconcilable Differences?
The law and proposed regulations require that the employee count be based on the standard calendar year. However, the law permits employers to structure their annual sick leave accruals and usage caps based on any other 12-month period. This divergence could create some confounding scenarios and may warrant clarification, if possible, before the DOL finalizes these regulations. But, for now, it seems employers must look back as far as the most recent January 1st to count employees even if their plan year started on a different date.
Accruals
In their final section, the proposed New York paid sick leave regulations briefly address the subject of leave accruals. By default, the law requires that employees earn sick leave at the rate of at least one hour of leave for every 30 hours worked.
The regulations first note that “Employee accruals of leave must account for all time worked, regardless of whether time worked is less than a 30-hour increment”. In other words, an employee who works 35 hours in a week doesn’t only accrue one hour of sick leave that week. Instead, they accrue one full hour, plus some fraction of an hour. The DOL further allows that employers may round accrued leave to the nearest 5, 6, or 15 minutes. But the rounding must not “result, over a period of time, in a failure to provide the proper accrual of leave to employees for all the time they have actually worked.”
Initial Reaction to the Proposed New York Paid Sick Leave Regulations
Employers must comply with the New York Paid Sick Leave Law by January 1, 2021. That does not allow enough time for the DOL to accept and meaningful review the anticipated volume of comments this proposal will invite. (Update: Comments are due by February 8, 2021.) The DOL may be able to implement the proposed regulations temporarily on an emergency basis. Whether that happens or not, employers should generally try to follow the proposed regulations. Or at least should obtain advice from an experienced New York employment lawyer before deciding not to do so.
In any event, these proposed regulations do not answer all the reasonable questions raised by the new law. And the law applies to all private employers in the state, creating new financial obligations for many of them. So, concerted efforts (from both employer and employee interests) to obtain additional DOL clarification seem likely.
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