Seyfarth Synopsis: On November 23, 2021, the New York City Council approved a bill that would amend and expand New York City’s Earned Safe and Sick Time Act, most notably by providing employees with paid time off in connection with vaccinating their children for COVID-19. Per the City’s legislative process, Mayor Bill de Blasio has 30 days to take action on the bill. The 30 day mark ends tomorrow, December 23, 2021. The bill takes effect immediately, which means that unless it is vetoed, it will go into effect either today (if signed) or tomorrow (if no action is taken). Importantly, the new mandate would have retroactive effect to November 2, 2021, and will sunset on December 31, 2022.
On November 23, 2021, the New York City Council approved a bill that, unless vetoed by Mayor Bill de Blasio within 30 days (i.e., by tomorrow, December 23), would amend New York City’s Earned Safe and Sick Time Act (“NYC ESSTA”) in a significant way. The amendment would provide employees with paid time off in connection with vaccinating their children for COVID-19. Given the current date and that the bill was introduced at the Mayor’s request, a veto seems unlikely. If signed by the Mayor or if no action is taken by the Mayor, then the amended ordinance will become effective immediately, with retroactive effect to November 2, 2021. The child vaccine paid time off would expire on December 31, 2022.
Here are some of the bill’s highlights.
One of the most significant changes is that, if amended, ESSTA will provide employees with up to four hours of paid time off in order to (1) accompany their child to receive a COVID-19 vaccine injection or (2) care for their child if the child suffers temporary side effects from a COVID-19 vaccine injection. The four-hour limit is per vaccine injection, for each employee’s child who is under age 18 or who is over the age of 18, but incapable of self-care due to a mental or physical disability.
A key aspect of the proposed amendments is that COVID-19 child vaccination time will not count against an employee’s regular accrual or use of safe or sick time under the NYC ESSTA.
If the amendments go into effect, the current ESSTA requirements for employee notice to employers would apply to absences for COVID-19 child vaccination. Accordingly, as with use of sick or safe time, when COVID-19 child vaccination time is foreseeable, employers may require reasonable advance notice, up to seven days prior to the use of time. When the need for COVID-19 child vaccination time is unforeseeable, employers may require an employee to provide notice as soon as practicable. Employers can require that an employee using COVID-19 child vaccination time provide reasonable documentation that their child was vaccinated within seven days of their use of such time.
Under the bill, employers must pay employees their regular rate of pay (excluding any tip credit or tip allowance) for COVID-19 child vaccination time. The bill states that payment must be made by the next regular payday after the COVID-19 vaccination time was used by the employee.
It is unclear at this time whether companies with collective bargaining agreements (CBA) can waive COVID-19 child vaccination time requirements through the CBA.
The bill states that for each instance of COVID-19 child vaccination time taken by an employee but unlawfully not compensated by the employer, the employer could face penalties equal to the greater of three times the wages that should have been paid or $250. Further, the bill states that for each instance of COVID-19 child vaccination time unlawfully denied or charged against an employee’s paid safe and sick time accruals, the employer may face a $500 penalty.
Although the bill applies retroactively to November 2, it includes a 60-day phase-in period during which time the Department of Consumer and Worker Protection will provide non-complying employers with written notice and a 15-day period to cure the noncompliance before enforcing the above potential penalties against them.
For employees who took unpaid time off from work between November 2 and the date the law goes into effect, employers may retroactively comply by paying employees for the COVID-19 child vaccination time already used. Such payment must be made no later than the payday for the next regular payroll period beginning after the law takes effect. Although the bill states that employers may satisfy their obligation to provide COVID-19 child vaccination time to an employee who used leave time between November 2 and the date the law goes into effect by paying the employee for the COVID-19 child vaccination time used, it is unclear if the employer can instead credit back the NYC ESSTA time or other paid time off that the employee previously used in order to avoid paying the employee twice for the same leave. It is possible that future guidance may address this issue.
As with use of ESSTA safe or sick time, employers may not require an employee using COVID-19 child vaccination time to work additional hours to make up for the absent time or to find a replacement employee to cover the absent time. Similarly, employers are prohibited from taking adverse actions against employees for using COVID-19 child vaccination time or for exercising their rights under the bill.
Given the high likelihood of the City’s COVID-19 child vaccination mandate going into effect in the next few days, employers should take steps immediately to review their time off practices and make any needed updates based on the bill’s requirements. In addition, employers should review their time off and attendance records since November 2 to determine which, if any, employee absences may qualify as retroactive COVID-19 child vaccination time and ensure compliance with this amendment to the law.