On December 24, 2021, New York City enacted a law (Introduction No. 2448-2021) permitting employees who are parents to take paid time off to accompany their children when they receive COVID-19 vaccinations. In addition, the law allows these employees to take paid time off to care for their children if they experience side effects from the COVID-19 vaccine. The bill, which amends the New York City Earned Safe and Sick Time Act (ESSTA), took effect immediately. However, the bill’s provisions apply retroactively to November 2, 2021. The law will expire on December 31, 2022. The New York City Council passed the bill on November 23, 2021.
Eligible Employees
The law gives certain employees up to four hours of paid time off, per injection per child. Employees with children under the age of 18 or with children “incapable of self-care because of a mental or physical disability” are eligible to use the paid time off. The law defines a “parent” as a “biological, foster, step- or adoptive parent, or a legal guardian” as well as individuals who stand in loco parentis.
Payment
The law requires employers to compensate employees for their paid time off at the employee’s regular rate. In addition, the law requires employers to pay eligible employees on the next regular payday following the period in which the employees used child vaccination leave. This time must be in addition to leave already provided under the ESSTA.
Notice
In some circumstances, the law permits employers to require eligible employees to provide notice of their need for the time off. Depending on whether the employee’s need for leave is foreseeable, the employer may require anywhere from seven day’s notice to notice “as soon as practicable.”
Supporting Documentation
The law permits employers to require employees to provide them supporting documentation for their need for leave.
No Waiver
The provision of COVID-19 child vaccination time under the law cannot be waived.
Penalties
Employers that fail to compensate employees for protected leave may be liable for up to three times the wages that they should have paid or $250, whichever is greater. Employers may also be liable for a civil penalty of $500. The law also provides for additional civil penalties of up to $500 for a first violation, up to $750 for each subsequent violation that occurs within two years of any previous violation, and up to $1,000 for successive violations.
Retroactive Application
The law is effective as of November 2, 2021, but the city will not impose penalties through February 22, 2022 (i.e., 60 days after December 24, 2021, the date the bill was enacted into law). During this 60-day period, the New York City Department of Consumer and Worker Protection must provide employers with written notice of alleged violations and 15 days to cure these violations before they enforce the law.
Key Takeaways
Employers in New York City may wish to review the new law’s requirements and align their practices with the obligations articulated in the law.
Ogletree Deakins will continue to monitor and report on developments with respect to the “Key to NYC” mandate and pending injunction and will post updates in the firm’s Coronavirus (COVID-19) Resource Center and on the New York blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.