As we recently reported, as of March 12, 2021, all private employers in New York must provide their employees with up to four hours of paid leave to get each COVID-19 vaccination shot. The State has now released guidance on the new law (“Law”) in the form of Frequently Asked Questions (“FAQs”). Most importantly, the FAQs clarify that the Law does not create any retroactive benefit rights to paid vaccination leave. Accordingly, while an employer is free to apply the law retroactively if it wishes, the Law mandates that “only employees receiving vaccinations on or after March 12, 2021 are eligible for paid leave.”

The FAQs also Clarify or Reiterate the Following Points:

• The leave mandate applies to each vaccine injection. Thus, if an employee needs two or more doses of the vaccine, he or she is entitled to up to four hours of leave for each

• Paid vaccination leave is available only for an employee’s need for time off to get vaccinated him or herself; the leave may not be used to assist a relative or another individual in getting vaccinated.

• An employer may not substitute paid vaccination leave with any other paid leave benefit, such as paid sick time.

• Although the Law itself is silent on the issue, according to the FAQs, employers may require employees to provide notice of their need to take vaccination leave. While the FAQs do not address the details of such notice, employers should ensure that any notice requirement is reasonable under the circumstances. For instance, an employee may get an appointment “last-minute” because of a cancellation and, thus, may not be able to provide advance notice. On the other hand, employees who require two doses of a vaccine usually are scheduled for their second dose at the time they get their first inoculation. Accordingly, in this situation, it would be reasonable to expect the employee to give advance notice of the date he or she will again need leave to receive the second shot.

• Although verification also is not addressed by the Law, according to the FAQs, employers may require employees to submit documentation proving that they, in fact, used the leave time to get vaccinated. The FAQs, however, “encourage” employers “to consider any confidentiality requirements applicable to such records prior to requesting proof of vaccination.”

• Employees must be paid at their regular rate of pay.

• The Law will sunset on December 31, 2022.

Questions Not Addressed by the FAQs

Neither the Law nor the FAQs distinguish between full-time and part-time employees. Accordingly, employers should play it safe and assume that part-time employees must be treated the same as full-time workers with respect to both the amount of leave time and the rate of pay to which they are entitled.

Further, while the FAQs reiterate that “the rights afforded under this law may be waived in a collective bargaining agreement” (“CBA”) as long as the CBA “specifically reference[s]” the Law, another section of the Law only exempts a CBA (or employer policy) if it grants “a greater number of hours” to get vaccinated for COVID-19. Hence, as the FAQs offer no clarification, prudence warrants that employers subject to a CBA meet both conditions for a waiver to be valid and for an employer to be exempt from the Law, i.e., the CBA must provide at least four hours of leave for each required injection and it must contain waiver language that explicitly references the Law.

Finally, the Law does not mandate, and the FAQs do not address, employer-provided notice of employees’ rights under the Law. Employers may choose to provide such notice if they wish.