Seyfarth Synopsis: The New York Department of Labor (“NYDOL”) has released FAQs on the State’s COVID-19 Vaccine Paid Leave Law, which went into effect on March 12, 2021. The FAQs address a number of issues that were unclear in the text of the law, for example: (a) whether paid leave was retroactive; (b) notice and documentation of leave; and (c) clarification on reasons for use.

New York continued its wave of recent paid leave developments when its new COVID-19 Vaccine Paid Leave Law was signed and went into effect on March 12, 2021.[1] The COVID-19 vaccine paid leave requirements are codified in Section 196-C of the New York Labor Law (“NYLL”) and remain in effect until December 31, 2022. Under the mandate, covered employers must provide eligible employees with a paid leave of absence for a sufficient period of time, not to exceed 4 hours, per injection, to be vaccinated for COVID-19. Employees must be compensated at their regular rate of pay for COVID-19 vaccine leave, which takes priority over any other leave to which employees may be entitled, including, but not limited to, paid sick leave under the New York State Paid Sick Leave Law.

For more information on the requirements of the COVID-19 Vaccine Paid Leave Law, see our prior Legal Updates here and here.

As we previously reported, the new statewide law left open a number of questions related to the vaccine paid leave mandate. These questions included topics such as retroactivity, documentation, and employee notice. The NYDOL’s recently published FAQs help clarify a number of these ambiguities.

Significantly, the FAQs state there are no retroactive benefit rights and only employees receiving vaccinations on or after March 12, 2021 are eligible for paid leave.(emphasis added). This is a welcome confirmation for employers, especially as certain other recently passed COVID-19 paid sick leave mandates around the country are being applied retroactively.[2] The FAQs note that employers have the option to voluntarily provide COVID-19 vaccine paid leave to employees for covered absences before March 12.

The FAQs confirm the 4-hour paid leave per COVID-19 vaccine injection maximum, but leave the term “sufficient period of time” undefined.[3] In light of the single-shot Johnson & Johnson vaccine and two-shot Moderna and Pfizer vaccines currently authorized by the federal government, employees are entitled to up to 4 or 8 hours of paid leave depending on which vaccine they receive.

The FAQs indicate that further COVID-19 vaccine paid leave could be required in the event it is determined that additional COVID-19 booster injections are necessary: “[t]he maximum number of hours that an employee is entitled to paid leave under this law depends on the number of required COVID-19 vaccine injections.” (emphasis added).

The FAQs also confirm that employees cannot use COVID-19 vaccine paid leave for their family members’ COVID-19 vaccine injection stating that COVID-19 vaccine leave “is only available to the employee for their own receipt of COVID-19 vaccine.” Relatedly, the COVID-19 Vaccine Paid Leave Law also does not apply if an employee experiences illness as a vaccine-related side effect in the days following the vaccine. However, employees may have available sick leave for these reasons.[4]

Finally, while the text of the law is silent on whether employers can require employees to provide notice of COVID-19 vaccine paid leave use or documentation to verify the same, along with any limitations on these abilities, the FAQs provide the following:

  • Notice: “The law does not prevent an employer from requiring notice” before taking COVID-19 vaccine paid leave.
  • Documentation: “The law does not prevent an employer from requiring proof of vaccination [to allow employees to claim COVID-19 vaccine paid leave]. However, employers are encouraged to consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination.”

Notably, the FAQs do not currently provide guidance on, among other topics: (a) how far in advance employers can require notice; (b) what methods of notice must be permitted (e.g., oral, written, and/or electronic); (c) types of documentation that can be required to show proof of vaccination; (d) the amount of time employees must be given to provide proof of vaccination; and (e) the confidentiality requirements employers must adhere to when requesting proof of vaccination. Employers should be mindful of federal guidance on these topics if they choose to request documentation.

While the FAQs go a long way towards clarifying COVID-19 vaccine paid leave obligations for New York employers, additional clarification will be necessary based on the remaining ambiguities and future developments with respect to the COVID-19 pandemic and inoculation efforts.

With the COVID-19 and paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with New York State and local COVID-19 and non-COVID paid sick leave laws, and paid leave requirements more generally. Consult Seyfarth’s COVID-19 Resource Center for updated information regarding the rapidly evolving COVID-19 situation and its impact on the workplace.