Hunton Employment & Labor Perspectives

Last month, the State of New York passed legislation which permits New York employees up to four hours of paid leave to receive a COVID-19 vaccination. While this new legislation became effective immediately upon passing on March 12, 2021, employers were left with many questions regarding their obligations under the law. In an effort to resolve some of these questions, the New York Department of Labor issued guidance in the form of FAQs to provide clarification for employers.

Benefits not retroactive

The FAQ make clear that employers are not required to pay this benefit retroactively to employees who have already taken leave prior to March 12, 2021 (the effective date of the legislation). The FAQs provide that “[t]his law does not create any retroactive benefit rights and only employees receiving vaccinations on or after March 12, 2021 are eligible for paid leave. However, nothing in the law prevents employers from voluntarily providing employees with such benefits retroactively.”

Maximum amount of leave is per injection

After the passage of the legislation, employers were left to wonder if the statute provides for up to four hours of leave for all COVID-19 injections, or if employees would be entitled to a maximum of four hours of leave per injection. The FAQs resolve this ambiguity in the statute, stating “[i]f a COVID-19 vaccine requires two injections, then the employee would be entitled to two periods of paid leave of up to four hours each (which could be up to 8 hours in total).”

Leave only permitted for vaccination of employee

The FAQs also clarify that employees are only entitled to paid leave for their own vaccination. The law does not require employers to pay employees for time off to assist a relative or another person in getting vaccinated.

Employers can require proof of vaccination and reasonable notice

Employers may also require employees provide proof of vaccination in order to receive the leave. The law also does not prevent employers from requiring employees to provide notice prior to taking the leave.

Unanswered questions still remain

The FAQs released by the New York Department of Labor do not address all employers’ questions and have created additional questions that will need to be clarified. For example, the FAQs do not address (i) how much notice an employer can require, (ii) what constitutes proof of vaccination, or (iii) whether the legislation would apply to any future “booster” vaccinations.