NYSDOL Issues Guidance Regarding New York COVID-19 Vaccine Leave Requirements

Date: March 30, 2021

In late March 2021, the New York State Department of Labor (NYSDOL) issued much anticipated guidance on New York state’s new COVID-19 vaccine leave law. The law, which was signed by Governor Cuomo and went into effect on March 12, 2021, requires employers to provide up to four hours of paid leave upon request to employees who work in the state of New York and are scheduled to receive a COVID-19 vaccine. Under the law, an employee is entitled to this paid leave for each dose of the vaccine that the employee receives.

The law as written, however, left open a number of questions regarding the limits of any leave entitlement as well as an employer’s ability to request supporting documentation for the leave. The NYSDOL’s new guidance now provides this much needed clarification for employers:

  • Leave for Employee’s Own Vaccination. The NYSDOL’s guidance confirms that employees are only entitled to paid leave under the law to receive their own COVID-19 vaccine. As a result, employees may not request or receive paid leave to assist a relative or other person in getting a vaccine.
  • Notice and Proof of Vaccination. The NYSDOL states that the law does not prohibit employers from requiring proof of vaccination to support a request for paid leave. Nor does the law prohibit employers from requiring advanced notice from employees for any period of paid leave. As we previously reported, the EEOC has also confirmed that requesting proof of vaccination will not violate the Americans with Disabilities Act. The NYSDOL cautions, however, that employers should nevertheless be mindful of any confidentiality requirements related to vaccination records.
  • Substitution of Other Paid Leave. The NYSDOL’s guidance confirms that the law does not allow employers to substitute an employee’s other existing leave to cover a period of absence for COVID-19 vaccination. As a result, New York employers may not require employees to use accrued vacation, sick leave or other paid time off to satisfy the new paid leave requirements.
  • Retroactive Application. The law itself did not state whether the paid leave requirements apply to employees who received vaccine doses prior to the law’s March 12, 2021 effective date, but the NYSDOL’s guidance now confirms that the law does not apply retroactively. Nevertheless, the NYSDOL clarifies that employers are still free to voluntarily provide retroactive paid leave to such employees.

New York’s COVID-19 vaccine leave law remains in effect until December 31, 2022. In light of the NYSDOL’s new guidance, New York employers should take steps to ensure that they have effective procedures in place to manage employee requests for COVID-19 vaccination leave. All employers who are considering a workplace vaccination mandate should be prepared to provide paid leave to employees who obtain COVID-19 vaccines in order to return to the workplace. As with any other request for medical documentation, whether related to leave or workplace accommodations, New York employers should also ensure that appropriate confidentiality protections are applied to proof of vaccination or other documentation obtained from employees.

FOR MORE INFORMATION

We will continue to monitor any further developments regarding New York’s COVID-19 vaccine leave law, as well as similar leave laws that may be enacted in other states or municipalities. For more information, please contact:

Rebecca Brazzano
212.908.3941
Rebecca.Brazzano@ThompsonHine.com

Matthew R. Kissling
216.566.5586
Matthew.Kissling@ThompsonHine.com

M. Scott Young
513.352.6617
Scott.Young@ThompsonHine.com

or any member of our Labor & Employment practice group.

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