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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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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