[UPDATE: On March 12, 2021, Governor Cuomo signed the bills into law, providing for paid COVID-19 vaccination leave for New York employees, effective immediately.]
The New York State Legislature recently passed bills (Bill S2588A; A3354B) that would provide all public and private employees in New York with up to four hours of paid leave to obtain the COVID-19 vaccine. The legislation is expected to be signed by Governor Cuomo shortly.
The proposed law provides that the paid vaccination leave may not be charged against any other leave that the employee is entitled to, such as any paid sick leave or leave pursuant to any collectively bargained agreement. An employee will be entitled to up to four hours for each COVID-19 vaccination through December 31, 2022.
Furthermore, the law expressly prohibits employers from discriminating against, retaliating against, or interfering with an employee’s rights under the law, including an employee request for paid time off to get vaccinated. If an employee is subject to a collective bargaining agreement (CBA), the employee may receive more time as the CBA allows, or the law may be waived entirely if the CBA makes explicit reference to the law.
Once signed into law, employers will need to immediately review the law and promptly implement compliant vaccination leave policies. However, there are a number of open questions raised by the proposed legislation and hopefully the New York State Department of Labor will issue regulations clarifying certain outstanding issues.
First, can employers ask their employees for proof of vaccination. Based on EEOC guidance, under the Americans with Disabilities Act, we believe employers are entitled to do so. Second, can employers control when employees schedule vaccination appointments? Third, must employers provide paid leave if employees schedule their vaccine appointments on nights or weekends outside their regular working hours? Fourth, does the legislation only apply to non-exempt employees and exempt employees will simply continue to receive their regular salary?
For assistance in answering these questions, forming policies related to vaccination leave, or any other concerns regarding COVID-19 policies and procedures in the workplace, please contact an author of this article or the Hogan Lovells lawyer with whom you regularly work.
Shannon Finnegan, a Law Clerk in the New York office, contributed to this blog post.