On March 12, 2021, Governor Andrew M. Cuomo signed a new law giving employees paid leave time to receive their COVID-19 vaccine. The law will remain in effect until December 31, 2022. Given the rise in highly transmissible variants of COVID-19, the need for vaccinations has never been more pressing. As employers and employees seek normalcy and a return to working in offices in the near future, this new law ensures employees have the flexibility and increased opportunity to go out and get the vaccine.
Who Counts as an Employer?
The language of the law is expansive as it notes:
Every employee shall be provided a paid leave of absence from his or her employer for a sufficient period of time, not to exceed four hours per vaccine injection, unless such employee shall receive a greater number of hours pursuant to a collectively bargained agreement or as otherwise authorized by the employer, to be vaccinated for COVID-19.1
The Department of Labor of New York has recently issued guidance and explains “employer” includes any “person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. Public employers, including state and local government entities, are covered by a separate paid vaccine leave law under New York State Civil Service Law §159-c.”2
Number of Hours of Paid Leave Covered Under the Law
The law explains there is a maximum of four hours of paid leave allowed per vaccine injection. Accordingly, employees receiving the Johnson and Johnson vaccine would be entitled to a maximum of four hours and employees receiving the Moderna or Pfizer vaccine would be entitled to a maximum of eight hours as two doses are required.
Rate of Pay During Paid Leave
The language of the law notes:
The entire period of the leave of absence granted pursuant to this section shall be provided at the employee’s regular rate of pay and shall not be charged against any other leave such employee is otherwise entitled to, including sick leave pursuant to section one hundred ninety-six-b of this article, or any leave provided pursuant to a collective bargaining agreement. New York Labor Law § 196-c.3
Thus, the employer is obligated to compensate employees at their regular rate of pay.
Effect of Law on Collective Bargaining Agreements
For unionized employers, the law explains:
The provisions of this section may be waived by a collective bargaining agreement, provided that for such waiver to be valid, it shall explicitly reference this section of law. Id.4
Therefore, as long as the collective bargaining agreement specifically references section 196-c of the New York Labor Law, the rights afforded under it may be waived.
According to the language of the law, it does not create a retroactive applicability. Only employees who were vaccinated on or after March 12, 2021 are eligible for paid leave. However, employers may still voluntarily offer paid leave retroactively.
Given New York’s ambitious vaccination efforts, this law serves to reinforce and support employees in getting the COVID-19 vaccine. By requiring four hours of paid leave per dose, it offers employees reasonable time to ensure they can get the vaccine. With the law assisting in providing this right to employees, employees will not fear retaliation, penalties, or a firing by their employer for missing time at work. It also removes the barrier of missing paid hours of work to receive the vaccine. New York employers should review their policies on paid leave, especially as it relates to COVID-19, and ensure they make necessary revisions to comply with the law. The hope is everyone can return to their offices and see co-workers in person in the very near future.
1 New York Labor Law § 196-c.
2 New York State Department of Labor, Paid Leave for COVID-19 Vaccinations, https://dol.ny.gov/system/files/documents/2021/03/cd6.pdf.
3 New York Labor Law § 196-c.