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New York State Requires Employers to Provide Paid Leave to Obtain COVID-19 Vaccinations

By Kris D. Meade, Trina Fairley Barlow, Thomas P. Gies, Eric Su, Ira Saxe & Lynn Hsieh on March 18, 2021
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The New York State legislature recently passed a bill (S2588A/A3354B), signed into law by Governor Cuomo on March 12, 2021, which amends the New York Labor Law and Civil Service Law to grant private and public employees paid leave time for the COVID-19 vaccination. The law is effective March 12, 2021 and will expire on December 31, 2022. Under the new law, employers are required to provide employees with paid leave of absence for COVID-19 vaccinations for a sufficient period of time, not to exceed four hours per COVID-19 vaccine injection. The four-hour maximum per vaccination does not apply to employees subject to a collective bargaining agreement (CBA) providing a greater number of hours, or as otherwise authorized by the employer, to be vaccinated for COVID-19. Where a CBA explicitly references the law, however, its leave provisions may be waived in their entirety.

Currently, the FDA has authorized the use of three vaccines: the Pfizer Inc. and Moderna Inc. vaccines, which each require two doses, and the Johnson & Johnson vaccine, which requires only one dose. Therefore, employees will generally be entitled to up to eight hours of paid leave, depending on the vaccine. This time must be paid at the employee’s regular rate of pay for the entire leave period. The law also provides that the paid vaccination leave may not be charged against any other leave to which the employee is entitled, such as any paid sick leave or leave pursuant to a CBA. Discrimination and retaliation against employees for exercising their rights under the law are prohibited.

A review of policies and practices applicable to workforces in New York State concerning paid leave should be conducted in order to identify any revisions necessary to comply with this new law. The impact on this new requirement on various wage and hour issues, such as spread of hours/split shifts and amounts to pay tipped employees where applicable, should be considered as well. The new law is silent on what, if any, documentation an employer can request from its employees to verify such paid leave. The Equal Employment Opportunity Commission has, however, previously concluded that employers can request proof of receipt of a COVID-19 vaccination, but should consider informing employees not to provide any related medical information. While this New York State statute does not set forth a notice provision, employers should consider ways to advise employees that they are eligible for paid leave under these circumstances.

Photo of Kris D. Meade Kris D. Meade

Kris D. Meade is co-chair of Crowell & Moring’s Labor & Employment Group. He is also a member of the firm’s Management Board and Executive Committee. He counsels and represents employers in the full range of employment and traditional labor law matters, including…

Kris D. Meade is co-chair of Crowell & Moring’s Labor & Employment Group. He is also a member of the firm’s Management Board and Executive Committee. He counsels and represents employers in the full range of employment and traditional labor law matters, including individual and class action lawsuits filed under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, ERISA, and companion state statutes. Kris represents employers in connection with union organizing campaigns, collective bargaining, labor arbitrations, and unfair labor practice litigation. In 2020, Chambers USA recognized Kris as a leading labor and employment lawyer.

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Photo of Trina Fairley Barlow Trina Fairley Barlow

Trina Fairley Barlow is co-chair of the firm’s Labor and Employment Group and a member of the firm’s Government Contracts Group. She devotes a substantial portion of her practice to helping government contractors navigate and comply with the myriad laws, regulations, and Executive…

Trina Fairley Barlow is co-chair of the firm’s Labor and Employment Group and a member of the firm’s Government Contracts Group. She devotes a substantial portion of her practice to helping government contractors navigate and comply with the myriad laws, regulations, and Executive Orders which impact employers who are also government contractors. Trina’s experience includes advising federal contractors on the requirements of the Service Contract Act, as well as the Davis Bacon Act, and assisting clients with developing compliance strategies that reduce legal risks. In addition, Trina has defended and advised clients in False Claim Act (FCA) whistleblower retaliation cases and has led large internal investigations that frequently encompass a complex combination of labor and employment, government contracts, and ethics and compliance issues. In connection with such investigations and in other contexts, clients also frequently call upon Trina to assist them with developing compliant policies and internal practices that achieve business objectives while simultaneously reducing potential legal risks and exposure.

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Photo of Thomas P. Gies Thomas P. Gies

Thomas P. Gies is a founding member of Crowell & Moring’s Labor & Employment Group. Tom has more than 35 years of experience in litigating employment disputes. Tom’s litigation experience includes five jury trials, two U.S. Supreme Court arguments, 18 federal appellate court…

Thomas P. Gies is a founding member of Crowell & Moring’s Labor & Employment Group. Tom has more than 35 years of experience in litigating employment disputes. Tom’s litigation experience includes five jury trials, two U.S. Supreme Court arguments, 18 federal appellate court arguments, and more than a hundred trial court and arbitration matters involving a wide range of labor and employment law issues, including traditional labor law, whistleblower retaliation, EEO claims and wage & hour class and collective actions. Tom also maintains an active compliance counseling practice, involving the full range of employment law issues facing U.S. employers. Tom’s traditional labor counseling practice has focused on helping companies develop and implement strategies in situations involving operational restructurings, facility closures, subcontracting of bargaining unit work, and work stoppages.

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Photo of Eric Su Eric Su

Eric Su is a partner in Crowell & Moring’s Labor & Employment Group in the firm’s New York office. His practice mainly involves representing management in all aspects of labor and employment law, including government investigations and class and collective action litigation defense…

Eric Su is a partner in Crowell & Moring’s Labor & Employment Group in the firm’s New York office. His practice mainly involves representing management in all aspects of labor and employment law, including government investigations and class and collective action litigation defense involving alleged violations of the Fair Labor Standards Act, and parallel state wage and hour laws. Eric has routinely handled investigations by federal and state labor departments, law enforcement,  and municipal agencies concerning wage and hour issues including, but not limited to, compliance with the Davis-Bacon Act (and Related Acts), Service Contract Act, and state “little Davis Bacon” and other prevailing wage or similar laws (e.g. New York Real Property Tax Law 421-a and New York Wage Parity Act).

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Photo of Ira Saxe Ira Saxe

Ira Saxe is a member of the firm’s Labor & Employment Group and a partner in the New York office. He provides management-side labor and employment litigation defense before federal and state courts in class actions, single-plaintiff litigation, and administrative agency proceedings involving…

Ira Saxe is a member of the firm’s Labor & Employment Group and a partner in the New York office. He provides management-side labor and employment litigation defense before federal and state courts in class actions, single-plaintiff litigation, and administrative agency proceedings involving the Fair Labor Standards Act (FLSA), Executive Order 11246, the ADA, Title VII, the ADEA, OSHA, the STAA, ERISA, and the Labor Management Relations Act. His practice also includes a variety of other federal, state, and local wage and hour, discrimination, breach of contract, wrongful discharge, labor, and workplace tort claims.

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  • Posted in:
    Corporate & Commercial
  • Blog:
    Retail & Consumer Products Law Observer
  • Organization:
    Crowell & Moring LLP
  • Article: View Original Source

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