What should employers and employees know?

The statute, enacted in New York Labor Law § 196-c, became effective on March 12, 2021, and expires on December 31, 2022. The benefits are apparent: the employee is to receive his or her regular rate of pay during the leave period of up to four hours; time taken for vaccination is not to be taken from any other leave to which the employee is entitled (e.g., not to be deducted from vacation, holiday, or sick leave); and importantly, the statute prohibits discrimination or retaliation against an employee for exercising his or her right to request a leave of absence for a vaccination.

Leave is only granted for shots administered during working hours, not for time taken on days off, on holidays, or after the end of the employee’s working day. Moreover, the leave is permitted only for the time taken to receive a Covid shot, not for recovery from side effects of a Covid shot.

Because the statute is now part of the New York Labor Law, employers must keep records of the time taken, and the compensation received for such leave, under Labor Law § 196-a.

Lastly, the language of the statute says that an employee is entitled to four hours of leave “per vaccine injection,” meaning that an employee who receives either the Pfizer or Moderna vaccine is entitled to up to eight hours of leave total for the two shots (spaced three to four weeks apart).

What don’t we know yet?
The statute does not address whether an employer can require proof that a vaccine was received, or what type of vaccine was administered. The statute is also silent about whether employees who have already received the shot can recoup pay or sick leave time they lost in getting the vaccine before the effective date of the law.

It is unclear whether the employer must grant leave to an employee for taking time off to accompany a family member to receive a shot, although it is likely that the employer’s insurance carrier which provides Paid Family Leave for Family Care would cover such leave.

The amount of notice required, if any, for both the employee and the employer is also uncertain. In similar statutes, such as Section 3-110 of the NYS Election Law, which entitles employees to paid time off for voting, employees are required to provide between two and ten days’ notice of their intention to utilize the paid time off. Section 196-c, however, contains no such directive. The statute does require the employee to request leave, suggesting that the employee must first schedule the shot, but does not specify how much advance notice, or the form of notice, the employer must require.

Similarly, the statute does not require that employers provide notice of the employee’s rights under this statute. However, we recommend that employers advise employees of this benefit in some manner, to encourage all employees to get vaccinated.

Under the requirements of the Americans with Disabilities Act, any information gathered by the employer regarding an employee’s medical condition should be kept confidential.

The statute does not address wage supplements and benefits for the time taken off.  But “regular rate of pay” is understood in Employment Law as including such wage supplements and benefits.   The employer must withhold taxes and authorized deductions from such pay.

What happens next?

As part of the New York Labor Law, the New York State Department of Labor is empowered to issue regulations and investigate complaints. We expect that the Department of Labor will issue further guidance to address some of these uncertainties.

Please feel free to contact us with any questions, and monitor our blog for further updates.