May 07, 2021 COVID-19 Vaccination Leave FAQS
KEEPING YOU INFORMED…
We are writing to advise you that the NYS Department of Labor (“DOL”) has published guidance about the COVID-19 vaccination paid leave law in the form of “Frequently Asked Questions.”[1]
As explained in our March 16, 2021 memorandum, NYS recently passed laws requiring public and private sector employers to provide an excused and paid leave of absence for employees to receive the COVID-19 vaccine from March 12, 2021 – December 31, 2022, for a “sufficient period of time,” with a maximum of four hours per vaccine injection. Although the FAQs specifically address Labor Law § 196-c (the private sector version of the law) and there is currently no public sector equivalent from the DOL, we believe that the FAQs nevertheless provide relevant information for public sector employers as well.
The FAQs clarify, among other things,[2] that:
• There is no definition of a “sufficient period of time” for purposes of this law, but the leave for each injection is limited to a maximum of four hours.
• The leave may only be taken for the employee’s own COVID-19 vaccination(s). It cannot be taken, for example, to assist a family member with receiving a vaccine.
• Employees must be paid at their regular rate of pay when taking leave pursuant to this law.
• Employers may not substitute the COVID-19 vaccination leave with other leave options available to the employee, including those pursuant to law or a collective bargaining agreement.
• The law does not prevent an employer from requiring employees to provide advance notice before taking the leave. (Notably, however, the FAQs do not say that the employer may deny the leave if the advance notice is not provided. We encourage you to contact us if you are considering denying an employee’s request for a COVID-19 vaccination leave on this basis.)
• The law does not prevent an employer from requiring proof of vaccination to substantiate the need for this leave, but employers should consider any potential confidentiality requirements connected with obtaining these records. (Here, too, the FAQs do not state whether the employer may deny a vaccine leave request if proof of vaccination is not provided. We encourage you to contact us to discuss this issue if it arises, as well as to review the obligations associated with the receipt/retention of an employee’s proof of vaccination.)
• Employees who took time off to get vaccinated before March 12, 2021 are not entitled to this law’s benefits.
• The rights afforded pursuant to this law may be waived in private sector collective bargaining agreements, provided that the waiver explicitly references Labor Law § 196-c.
If you have any questions regarding the FAQs please contact Alyssa Zuckerman (alz@lambbarnosky.com) or one of our other attorneys at 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
[1] The FAQs are available at: https://dol.ny.gov/system/files/documents/2021/03/cd6.pdf.
[2] This is not an exhaustive list. For all of the FAQs, please see the guidance document.
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