Seyfarth Synopsis: As expected, on Friday, March 12, 2021, Governor Andrew Cuomo signed New York State's COVID-19 Vaccine Paid Leave Bill into law. The law took immediate effect and will expire on December 31, 2022.
On March 12, Governor Cuomo signed legislation granting public and private employees up to 4 hours of paid leave per COVID-19 vaccine injection. As reported in our prior alert, it is not clear whether the bill, which took effect immediately, will be retroactively effective for those employees who received a COVID-19 vaccine before March 12, 2021. It is also not clear whether, if COVID-19 vaccine paid leave does have retroactive effect, how employers should handle other paid time off that may have been used by an employee for their vaccine-related time off.
COVID-19 vaccine paid leave under the law is required in addition to any other paid leave to which the employee is entitled. This includes, but is not limited to, paid sick leave under the New York State non-COVID-19 paid sick leave law or any leave pursuant to a CBA.1
As a reminder, employees must be paid their regular rate of pay during COVID-19 vaccine leave, which is fully funded by the employer. Employees may be entitled to more paid leave for COVID-19 vaccine injections if their employer provides a greater number of hours pursuant to a CBA or otherwise authorizes more vaccine-specific paid leave. It appears that a CBA provision or employer policy that provides greater amounts of COVID-19 vaccine paid leave would run concurrently with the leave provided by this law. Notably, the law states that the COVID-19 vaccine leave requirements can be waived by a CBA; however, for the waiver to be valid, it must explicitly reference section 196-C of the New York Labor Law.
Footnotes
1 Employers with employees in New York should particularly keep in mind their paid sick and safe leave obligations under the following additional mandates: (1) The New York State COVID-19 Emergency Leave Law; and (2) the New York City Earned Safe and Sick Time Act ("ESSTA"). Westchester County, NY employers remain subject to at least the local safe time mandate. Despite no known explicit action County legislature, the County Human Rights Commission, which aids in enforcement of both the sick and safe time mandates, posted language on its Earned Sick Leave Law webpage suggesting that the County sick leave ordinance is no longer in effect in light of the statewide general sick leave mandate while its separate Safe Time Leave Law remains in effect.
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