Our previous post on this new law raised several questions with regard to its application. The newly released FAQs answer most of these questions. First, employers may require proof of vaccination to allow employees to claim paid leave, but the FAQs encourage employers to consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination. Second, while the FAQs do not address whether employers may control when employees schedule their vaccination appointments, they do note that employers are permitted to require notice from employees before they take their paid leave. So, employers can likely request that the employee provide the employer with the date and time of the appointment as soon as the appointment is made. Third, employers must only provide paid leave for the “sufficient period of time” in which an employee is absent from work (not exceeding four hours). So, while an employee is entitled to up to four hours of paid leave per vaccination injection, if the employee’s appointment is at 9am, absent extenuating circumstances, the employer likely could require the employee arrive at the workplace immediately after receiving their vaccination, as opposed to permitting the employee to arrive at 1pm. Fourth, the FAQs define employers and employees: employers include any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business, or service.
In addition to answering these questions, the FAQs clarify several other aspects of the law. The most important of these clarifications include:
The law will remain in effect until December 31, 2022;
If an employee took time off to get the COVID-19 vaccination prior to March 12, 2021, employers may voluntarily provide paid leave benefits, but the new law does not require employers to provide the benefits retroactively;
The four hours of paid leave provided applies to each vaccine injection;
Employees can only take the paid leave to get vaccinated themselves, and thus may not use the paid leave to assist a relative or other person in getting vaccinated;
Employers may not substitute paid vaccination leave with any other paid leave benefit, such as paid sick time or leave provided by a collective bargaining agreement (CBA); and
Employees must be paid their regular rate of pay.
Though the FAQs have clarified many aspects of the New York paid vaccination leave law, there are still some open questions. First, the FAQs do not address whether employers may control when employees schedule vaccinations. Second, because the law and FAQs do not distinguish between full-time and part-time employees, it is unclear whether employers must provide the same leave to part-time employees.
For assistance in navigating these ambiguities, 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.
Heather McAdams, a Law Clerk in the New York office, contributed to this blog post.
Authored by Kenneth Kirschner and Zachary Siegel