Effective March 12, 2021, all public and private employers in New York must provide each employee with up to four hours of paid leave to obtain a COVID-19 vaccine injection.  The new law, which took effect immediately after being signed by Governor Cuomo, adds a new Section 196-c to the New York Labor Law and Section 159-c to the New York Civil Service Law.

Employees are entitled to paid leave, at their regular rate of pay, for a “sufficient period of time, not to exceed four hours per vaccine injection,” unless the employee is entitled to receive a greater number of hours under an existing employer policy or collective bargaining agreement.  Accordingly, employees who must take two doses of a COVID-19 vaccine are entitled to take up to eight hours (i.e., four hours per injection) of leave.  The paid leave provision expires on December 31, 2022.

Notably, employers cannot require employees to use any sick leave or other paid leave benefits to which the employees are already entitled, such as paid sick leave required under the New York State or New York City laws.  In addition, employers are prohibited from retaliating against employees who request or take leave under the new law.

However, the law is silent on several key issues, including whether (1) employees who already used paid leave to take the vaccine may be entitled to reinstatement of their leave, (2) employers can require proof of vaccination in connection with approving the leave, and (3) employees can be required to provide a certain amount of advance notice of their need to take leave.

Following the enactment of the law, the New York State Department of Labor published a FAQs page, in which it advises employers that they can require employees to provide notice before taking paid leave and to submit proof of vaccination before they can claim leave benefits.  In addition, the law does not create any retroactive benefit rights, and only employees receiving vaccinations on or after March 12, 2021 are eligible for paid leave.

As New York State continues to expand the categories of workers currently eligible to receive the COVID-19 vaccine, employers should implement policies and procedures to address a potential influx of vaccine-related leave requests.  According to New York City’s vaccine eligibility guidance page, all New Yorkers are expected to be eligible to take the vaccine this spring.

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Photo of Lindsay Burke Lindsay Burke

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising…

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising under federal and state laws, and she frequently partners with white collar colleagues to conduct internal investigations of executive misconduct and workplace culture assessments in the wake of the #MeToo movement. Recently, Lindsay has provided critical advice and guidance to employers grappling with COVID-19-related employment issues.

Lindsay guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.

Photo of Carolyn Rashby Carolyn Rashby

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. She conducts workplace investigations and cultural assessments, leads audits regarding employee classification, wage and hour, and I-9 compliance, advises on…

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. She conducts workplace investigations and cultural assessments, leads audits regarding employee classification, wage and hour, and I-9 compliance, advises on employment issues arising in corporate transactions, and provides strategic counsel to clients on a wide range of workplace matters, including harassment and #MeToo issues, wage and hour, worker classification, employee accommodations, termination decisions, employment agreements, trade secrets, restrictive covenants, employee handbooks, and personnel policies. Her approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.

Photo of Teresa Lewi Teresa Lewi

Teresa Lewi represents and counsels employers on a wide range of federal, state, and local employment laws. She focuses her practice on trade secrets, non-competition, executive compensation, separation, employee mobility, discrimination, and wage-and-hour issues.
Teresa has successfully tried cases in federal and state…

Teresa Lewi represents and counsels employers on a wide range of federal, state, and local employment laws. She focuses her practice on trade secrets, non-competition, executive compensation, separation, employee mobility, discrimination, and wage-and-hour issues.
Teresa has successfully tried cases in federal and state courts, and she also conducts internal investigations concerning trade secrets and workplace issues.

Teresa regularly represents clients in the life sciences, technology, financial services, sports, and entertainment industries. She has resolved matters through the pretrial, trial, and appeals process, as well as through alternative dispute resolution methods. In particular, Teresa has helped companies achieve highly favorable outcomes in high-stakes disputes over the protection of trade secrets or enforcement of agreements with employees.

Teresa’s practice also includes conducting workplace audits, drafting employment agreements and workplace policies, and advising companies on employment law developments (including recent changes to non-competition laws and COVID-19-related regulations).