March 15, 2021

3-15-21 Client Alert - New York State Enacts Paid COVID Vaccination Leave

Late Friday, March 12th, Governor Cuomo signed new COVID legislation requiring both public and private employers of all sizes to provide paid leave of up to 4 hours to employees for the purposes of receiving the COVID vaccine (the original version of the bill was applicable only to public employers). The law, which became effective immediately upon signing, is scheduled to expire on December 31, 2022 and does not set a limit as to the number of leaves an employee can take during that timeframe to receive a vaccination. Likewise, if the FDA, CDC or other government agencies recommend a COVID booster shot, employees will presumably be entitled to take advantage of this COVID leave in order to receive the booster.

The COVID Vaccination Leave is in addition to any employer provided leave, including New York State Paid Sick Leave. Employees must be paid their regular rate of pay (FLSA calculation) for such leave. Hospitality employers that take a tip credit must pay tipped employees at the full minimum wage for the leave period. As with virtually all mandated leaves, employers cannot retaliate against employees for exercising their leave rights.

The EEOC had previously opined that employers could request proof of vaccination without the request constituting a "medical inquiry". As such, employers may elect to require employees to provide proof of vaccination in connection with their request for COVID Vaccination Leave. In any case, employers are encouraged to implement a policy advising employees of the right to this leave and outlining any such requirements.