[co-author: Joseph Gusmano]*
On November 23, 2021, the New York City Council passed a bill amending its Earned Safe and Sick Time Act requiring all private-sector employers to provide their employees with four hours of paid COVID-19 child vaccination leave for each of their children, per vaccine injection, retroactive to November 2, 2021. The approved bill is now before New York City Mayor Bill de Blasio and will take effect immediately upon his signature.
What does the law require?
The amendment requires private employers covered by the Earned Safe and Sick Time Act to provide four hours of paid leave to employees who (a) accompany their children to COVID-19 vaccine injections and/or (b) care for such a child who is experiencing temporary side effects from a COVID-19 vaccine injection. The law does not distinguish between COVID-19 vaccine injections as part of a primary vaccination series and COVID-19 vaccination “booster” shots.
The child must be under the age of 18 or the child must otherwise be incapable of self-care by reason of mental or physical disability. Notably, as a parent is entitled to four hours of paid leave per injection, per child, a hypothetical parent of two children each undertaking a two-dose vaccination series theoretically may be eligible to take up to 24 hours of COVID-19 child vaccination leave for the aggregate four vaccination shots, and additional paid COVID-19 child vaccination later for each child’s subsequent “booster” shots, when/if authorized. This is in addition to the vaccination leave an employee is entitled to utilize under New York law for their own vaccine injections.
The law further prohibits employers from discriminating against or retaliating against any employee who takes or requests paid COVID-19 child vaccination time, or otherwise exercises their rights under the law.
May an employer require an employee to use existing sick leave in place of COVID-19 child vaccination leave?
No. Paid COVID-19 child vaccination leave is in addition to the employee’s accrual or use of existing safe/sick time.
Furthermore, an employer cannot require the employee to work additional hours to make up for the original hours the employee was unavailable, or find a replacement employee to cover their missed working hours, because the employee used paid COVID-19 child vaccination time.
Must an employee provide notice of their use of COVID-19 child vaccination leave?
Yes. The law permits employers to require reasonable notice, not to exceed seven days, of the foreseeable need to use COVID-19 child vaccination leave. If the need for leave is unforeseeable, an employer may require the employee to give notice as soon as practicable. Additionally, an employer may require that the parent provide proof of the child’s receipt of the vaccine injection within seven days.
Some employers have waived the applicability of the New York City Earned Safe and Sick Leave Act through a collective bargaining agreement. Can employers waive paid COVID-19 child vaccine leave in their collective bargaining agreements too?
No. The new provisions of the Act that provide for paid COVID-19 child vaccination leave state that they may not be waived by a collective bargaining agreement.
How must an employer apply paid COVID-19 child vaccination leave retroactively?
If the mayor signs the law, which is expected, it would take effect immediately and be retroactive to November 2, 2021. An employer may satisfy its obligation to provide COVID-19 child vaccination leave to an employee who already has taken such leave by compensating the employee no later than the next payday after the bill is signed. Although the law does not expressly address how to compensate an employee who previously used their existing sick leave or paid time off for COVID-19 child vaccination leave purposes on or after November 2, 2021, employees who have used such other leave may be entitled to have their previously used leave time re-credited to them in accordance with the retroactive reimbursement provision of the law.
What are the penalties for non-compliance?
Though the law will take effect immediately upon the mayor’s signature, the law contains a 60-day phase-in period during which the New York City Department of Consumer and Worker Protection would give written notice and a cure period before enforcing the law against employers that do not provide the new COVID-19 vaccination leave.
After the 60-day phase-in period, the Department is entitled to penalize non-compliant employers:
- For each instance of COVID-19 child vaccination time taken by an employee but unlawfully not compensated by the employer at three times the wages that should have been paid or $250, whichever is greater; and
- For each instance of COVID-19 child vaccination time unlawfully denied or charged against an employee’s paid safe/sick time accruals, $500.
Does the law expire?
Yes. The law expires by its terms on December 31, 2022. However, employers are still obligated to pay COVID-19 child vaccination leave taken before that date, even if the payment date falls after December 31, 2022. Further, the Department is empowered to pursue employers after December 31, 2022 that failed to comply with the law earlier.
What can employers do now?
New York employers should continue to monitor the status of the law to ascertain if/when it may go into effect. In anticipation that the bill may be signed by Mayor Bill de Blasio, employers should consider preparing updates to paid vaccine leave policies to address the availability and limitations of paid leave under this law (and the state paid vaccine law as well, if an employer has not already implemented a paid vaccine leave policy for employees themselves) and prepare the appropriate training for supervisory employees who will be responsible for ensuring employees receive their paid COVID-19 child vaccination leave. Although a 60-day phase-in period will allow employers some time to come into compliance without penalties, employers should anticipate employees’ immediately seeking the benefits of paid COVID-19 vaccination leave should the bill be signed. As the guidance regarding New York’s leave laws is revised frequently, employers should also stay apprised of new developments in New York’s leave entitlements and contact employment counsel with questions regarding the interpretation of these developments.