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NYS Requires Employers to Provide Paid Time Off for Employees to Receive COVID-19 Vaccination

On March 12, 2021, Governor Cuomo signed into law legislation which provides employees in New York State with paid time off to receive the COVID-19 vaccine.  The law took effect immediately.  Under the new law, New York State employers must provide employees with up to four (4) hours of paid time off per COVID-19 vaccination. The law will remain in effect until December 31, 2022 when it is scheduled to sunset.

Under the law, employees are entitled to paid time off in an amount not to exceed four (4) hours per COVID-19 vaccine injection.  The paid time off must be paid at the employee’s regular rate of pay, and employers may not require the use of any other leave time available to the employee (i.e. sick leave, vacation, PTO).

The law does not require employers to pay employees for time spent receiving a COVID-19 vaccination outside of their regularly scheduled working hours.

The law also prohibits employers from discriminating or retaliating against employees who take this leave.

The law applies to all public and private employers in New York State, regardless of size or number of employees.

The law does not address whether it should be applied retroactively to employees who took time off for a COVID-19 vaccination prior to March 12, 2021.  However, employers should ensure that any employee who has requested time off since March 12, 2021, has been paid (up to four (4) hours) and that their leave accruals have not been charged.

The law is also silent as to the documentation employers may require from employees seeking this leave, if any.  Employers who choose to require documentation, should consider the need to maintain that information confidentially as an employee medical record.

If you have not done so already, you should:

  • Ensure that all managers are aware of the right to the leave and of the prohibition against discrimination and retaliation.
  • Confirm that no employee has been required to use their accrued paid time off for leave to obtain a COVID-19 vaccination since March 12, 2021.
  • Implement a method to track the number of times this leave is taken by each employee and the number of hours taken each time.
  • Determine whether you will require employees to submit proof of vaccination and ensure that any proof submitted is maintained in the strictest of confidence as an employee medical record.

The New York State Department of Labor issued guidance in the form of answers to frequently asked questions to assist in administering this leave.  The questions and answers may be found here: https://dol.ny.gov/system/files/documents/2021/03/cd6.pdf

Summary Of Recent NYSDOL Guidance On The Use Of New York State COVID-19 Sick Leave

In March 2020, the NYS Legislature passed legislation requiring employers with employees in New York State to provide job protected leave to employees when the employee is subject to a mandatory or precautionary order of quarantine issued by the New York State Department of Health, a local board of health or any other governmental entity duly authorized to issue such an order related to COVID-19.  The amount of job protected leave required and whether the leave must be paid is determined by employer size and net income as follows:

  • Employers with 10 or fewer employees and net income of less than $1 million – unpaid sick leave for the period of the order of quarantine.  Employees will also be eligible for paid family leave and disability benefits.
  • Employers with 10 or fewer employees and net income of $1 million or more – 5 consecutive calendar days of paid sick leave and unpaid sick leave for the remainder of the period of the order of quarantine.  Employees will be eligible for paid family leave and disability leave benefits during the unpaid period of the leave.
  • Employers with 11 to 99 employees 5 consecutive calendar days of paid sick leave and unpaid sick leave for the remainder of the period of the order of quarantine.  Employees will be eligible for paid family leave and disability leave benefits during the unpaid period of the leave.
  • Employers with 100 or more employees – 14 consecutive calendar days of paid sick leave and unpaid leave for the remainder of the period of the quarantine order.

Shortly thereafter, guidance was issued clarifying that the paid leave entitlements of 5 or 14 days were 5 or 14 “consecutive calendar days.”  Thus, employees subject to a mandatory or precautionary quarantine are eligible for paid leave for a period of 5 or 14 consecutive calendar days.  Employees need only be paid for those days during that 5 or 14 consecutive day period, which they would normally have been scheduled to work.

On January 20, 2021, the New York State Commissioner of Labor issued additional guidance on the use of this COVID-19 sick leave.  This guidance contains several important details which, may require employers to change the manner in which they are administering this leave.

First, and most significantly, the guidance explains that a single employee may be eligible for the full paid leave entitlement on more than one occasion.  An individual may be subject to a mandatory or precautionary order of quarantine due to exposure to an individual who tested positive for COVID-19.   In this case, the individual would be entitled to job protected sick leave as set forth above, even if this individual does not test positive him/herself.  If, at a later date, the same employee actually tests positive he/she will once again be subject to a mandatory order of quarantine and will be entitled to the job protected sick leave set forth above for a second time.  To receive this second entitlement to sick leave the employee must submit documentation from a licensed medical provider or testing facility demonstrating that the employee tested positive for COVID-19.

In addition, where an employee has tested positive for COVID-19 and is subject to a mandatory order of quarantine, but continues to test positive for COVID-19 at the conclusion of the initial quarantine period, the employee will be deemed subject to a second order of mandatory quarantine and will be entitled to the job protected sick leave set forth above once again.

Thus, an employee may be eligible for the NYS COVID-19 job protected sick leave on one, two or three separate occasions as follows:

  • ONE LEAVE –
    • Employee tests positive and has recovered at the end of the initial quarantine period (1); or
    • employee is required to quarantine due to exposure to an individual who tested positive, but does not test positive him/herself (1).
  • TWO LEAVES –
    • Employee is required to quarantine due to exposure to an individual who tested positive, but does not test positive him/herself (1).  In the future the same employee tests positive for COVID-19 (2).
    • Employee tests positive for COVID-19 (1) and at the end of the mandatory quarantine period the employee is still testing positive for COVID-19 (2).
  • THREE LEAVES –
    • Employee is required to quarantine due to exposure to an individual who tested positive, but does not test positive him/herself (1).  In the future the same employee tests positive for COVID-19 (2).  At the end of the initial quarantine period the same employee is still testing positive for COVID-19 (3).

The guidance makes is clear that in no case shall an employee be eligible for more than 3 periods of entitlement to COVID-19 sick leave.  It also makes clear that the second and third period of entitlement must be based on a positive COVID-19 test.

The guidance also states that if an employer requires an employee who is not subject to a mandatory or precautionary order of quarantine to stay out of work due to exposure or potential exposure to COVID-19 (whether that exposure/potential exposure occurred in or out of the workplace) the employer must pay the employee at the employee’s regular rate of pay until such time as the employer permits the employee to return to work or until such time as the employee becomes subject to a mandatory or precautionary order of quarantine.  Once the employee becomes subject to a mandatory or precautionary order of quarantine, the employee will then begin receiving COVID-19 sick leave (paid or unpaid) as set forth above.  The pay for the time that the employer requires the employee who is not subject to a mandatory or precautionary order of quarantine to stay out of work is not considered part of or counted against the employee’s COVID-19 sick leave entitlement.

Finally, the guidance provides that there is no requirement under the law that employees returning to work (with the exception of nursing home employees) test negative for COVID-19 prior to returning.  There is no explicit prohibition on employers requiring employees to test negative prior to returning to work. However the guidance notes that it is not recommended that employees be required to test negative prior to discontinuing quarantine and returning to work.  However, given this updated guidance, an employer who requires such a negative test prior to allowing an employee to return to work will be required to pay the employee for any period of time following the conclusion of the mandatory or precautionary quarantine and the time the employee is permitted to return to work by the employer.

Importantly, this COVID-19 sick leave entitlement is in addition to the annual Sick/Safe leave requirement (of 40 or 56 hours, depending on employer size) for employees in New York, which took effect on January 1, 2021.

Updated New York State Paid Sick Leave Guidance

The New York State Department of Labor has released a list of answers to questions relating to the New York State Paid Sick Leave legislation, which takes effect on January 1, 2021.  The FAQ is available here: https://www.ny.gov/sites/ny.gov/files/atoms/files/PSL_FAQ_PaidSickLeaveFAQ.pdf

New York State Sick Leave Law Signed Into Law

On April 3, 2020, New York Governor Andrew Cuomo signed the 2021 budget into law.  The 2021 budget included an amendment to the labor law (N.Y. Lab. § 196-b [2020]) to require New York employers to provide sick leave to their employees.  Notably, governmental agencies and public sector employers are not subject to the New York sick leave law.  The New York sick leave law takes effect on September 30, 2020.

Amount of Sick Leave

The New York sick leave law requires private sector employers of all sizes to provide paid or unpaid sick leave to their employees based on the employer’s size and net income.

Employer Category Minimum Leave Requirement
Those with 4 or fewer employees and net income of less than $1 million in the previous tax year 40 hours of unpaid sick leave per year
Those with 4 or fewer employees and net income of more than $1 million in the previous tax year 40 hours of paid sick leave per year
Those with 5 to 99 employees 40 hours of paid sick leave per year
Those with 100 or more employees 56 hours of paid sick leave per year

 

For purposes of determining the number of employees in a calendar year, the calendar year is defined as starting on January 1 and ending on December 31.

For all other purposes, including for purposes of accruing and using paid sick leave, the law defines “calendar year” to mean either: (1) the 12 month period from January 1 through December 31; or (2) a regular and consecutive 12 month period as defined by the employer.

Employees shall earn one hour of sick leave for every 30 hours worked.  Employers may also provide employees the full amount of sick leave at the beginning of the year, however, it should be noted that if an employee does not work enough hours to have otherwise qualified for the amount of leave provided, employers may not later reduce the amount of sick leave previously granted.

Accrual

Under the New York sick leave law, sick leave will begin to accrue on September 30, 2020 or the start date of employment, whichever is later, but cannot be used until January 1, 2021.  In years following 2021, employees may use sick leave immediately upon accrual.  Any unused accrued sick leave shall be carried over to the following year, however, employers may limit the use of sick leave to the required minimum amounts accrued in any given year as outlined in the chart above.  Employers are not required to pay any unused sick leave to an employee who has been separated from employment for any reason.

Permissible Usage

An employee may take sick leave for the following reasons:

  • For the mental or physical illness, injury, or health condition of the employee or the employee’s family member, regardless of whether a diagnosis has been made or whether medical care is required at the time of the request;
  • For the diagnosis, care and treatment or the need for the diagnosis, care and treatment of a mental or physical illness, injury or health condition of the employee or the employee’s family member, or preventive care for such employee or employee’s family member;
  • For the employee or employee’s family member who is a victim of domestic violence, a family offense, sexual offense, stalking or human trafficking as needed to:
  • Obtain services from a domestic violence shelter, rape crisis center or other services program;
  • Participate in safety planning, relocating, or to take other actions to increase the safety of the employee or the employee’s family member;
  • Meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
  • File a complaint or domestic incident report with law enforcement;
  • Meet with a district attorney’s office;
  • Enroll children in a new school; or
  • Take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those associated with or working with the employee.

The law defines “family member” as an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent and the child or parent of an employee’s spouse or domestic partner.  “Parent” is defined as an employee’s biological, foster, step- or adoptive parent or legal guardian or a person who stood in loco parentis when the employee was a minor.  And “child” is defined as biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Employers may not require the disclosure of confidential information relating to the employee’s request for sick leave as a condition to providing such sick leave.  For those employers required to provide paid sick leave, an employee shall be compensated at their regular rate of pay for all sick leave used.  Employers may require a reasonable minimum increment of sick leave that an employee may take in any given day.  This minimum cannot exceed 4 hours.

Job Protection

Additionally, employees are entitled to job protection when using sick leave.  Upon return to work following sick leave, an employee shall be restored to their position of employment with the same pay and other terms and conditions of employment. Under the New York sick leave law, it is also unlawful to discharge, threaten, penalize or in any other manner discriminate or retaliate against any employee who takes sick leave.

Documentation

Employers must track accrual and usage and must keep such records for a period of not less than 6 years.  Additionally, upon an employee’s request, an employer must provide the amount of sick leave accrued and the amount of sick leave used to an employee within 3 business days of their request for such information.

Variations in Sick Leave

Employers are not required to provide additional sick leave under this law if the employer already has a policy providing for sick leave which meets or exceeds the requirements of the New York sick leave law including the accrual, carryover and use requirements.

Further, the law is not intended to prevent cities with populations of one million or more from enacting or enforcing local laws or ordinances which meet or exceed the requirements of the New York sick leave law.  For example, both Westchester County and New York City both currently have earned sick and safe leave laws that shall remain in effect.

Employers and unions may agree in a collective bargaining agreement entered into on or after September 30, 2020, that, in lieu of the statutorily required paid sick leave, covered employees will be provided with a comparable benefit in the form of paid days off, including leave, compensation and/or other employee benefits or a combination thereof.  Additionally, unions are permitted to negotiate sick leave benefits for their members that are different from the benefits provided by the law.  In both cases where a different benefit is provided for an employee covered by a collective bargaining agreement, the collective bargaining agreement must specifically acknowledge the New York sick leave law.

We expect the New York State Department of Labor will issue additional regulations and/or guidance prior to September 30, 2020, the effective date of the new sick leave law.  In the interim, employers should determine how much sick leave they will be required to provide to their employees and decide whether employees will be required to accrue the sick leave or whether the sick leave will be front loaded.  In addition, employers should ensure that they have a reliable method of tracking accrual and use of sick leave.  Employers with collective bargaining agreements should review those agreements to ensure that they provide a benefit equal to or greater than that required by the statute and, where that is not the case, arrange to meet with the bargaining agent for their employees to either renegotiate the sick leave benefit or enter into an agreement with the Union to provide for a different benefit, ensuring that any such agreement specifically references the New York State paid sick leave law.

NY Shield Act Expands Data Security Laws

This legislation is an expansion of New York’s data security requirements.  It amends both the NY General Business Law and the NY Technology Law to require business who maintain private information of NY residents to take certain steps to ensure that the electronic data they maintain is properly safeguarded from unauthorized access and expanding the requirement that business notify any NY resident whose information has been accessed or acquired with valid authorization.    The law applies not only to employee information (where the employees are residents of NY) but also to private information of non-employees that the business may have (i.e. customers who are NY residents).  So, while there is an employment component, the law is much broader.

Private information includes:

  • Social security number
  • Driver’s license number or non-driver identification card number
  • Financial account number, credit or debit card number and security code/access codes/passwords to the same
  • Biometric data (fingerprint, voice print, retina or iris image or other unique physical representation of biometric data)
  • Username or email address in combination with a password or security question answer that would permit access to an online account

The law requires any person or business that owns or license computerized data which includes private information of a resident of NY to “develop, implement and maintain reasonable safeguards to protect the security confidentiality and integrity of the private information including, but not limited to disposal of the data.”  N.Y. Gen. Bus. Law Section 899-BB 2 (2020).

Business that are currently complying with data security requirements of the Federal Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act or the NYS Department of Financial Services’ Cybersecurity Requirements for Financial Services Companies, will be deemed to be in compliance with the SHIELD Act.

For businesses not regulated by one of those statues, the law says that they must:

  1. Implement a data security program that includes “reasonable administrative safeguards” such as the following in which the business:
  1. Designates one or more persons to coordinate the security program;
  2. Identifies reasonably foreseeable internal and external risks;
  3. Assesses the sufficiency of safeguards in place to control the identified risks;
  4. Trains managers and employees in the security program practices and procedures;
  5. Selects service providers capable of maintaining appropriate safeguards and requires those safeguards by contract; and
  6. Adjusts the security program in light of business changes or new circumstances.

N.Y. Gen. Bus. Law Section 899-BB 2 (A)(1) through (6)(2020).

2. Implement reasonable technical safeguards such as the following in which the business:

  1. Assesses risk in network and software design;
  2. Assesses risk in information processing, transmission and storage;
  3. Detects, prevents and responds to attacks or system failures; and
  4. Regularly tests and monitors the effectiveness of key controls.

N.Y. Gen. Bus. Law Section 899-BB 2 (B)(1) through (4)(2020).

3. Implement reasonable physical safeguards such as the following in which the business:

  1. Assesses risks of information storage and disposal;
  2. Detects, prevents and responds to intrusions;
  3. Protects against unauthorized access to or use of private informant during or after the collection, transportation and destruction for disposal of the information; and
  4. Disposes of private information within a reasonable amount of time after it is no longer needed for business purposes by erasing electronic media so that the information cannot be read or reconstructed.

N.Y. Gen. Bus. Law Section 899-BB 2 (C)(1) through (4)(2020).

A “small business” will be deemed to be in compliance with the requirements listed above if the small business’s security program contains reasonable administrative, technical and physical safeguards that are appropriate for the size and complexity of the small business, the nature and scope of the small business’s activities and the sensitivity of the personal information the small business collects from or about consumers.  A “small business” is defined as  (1) fewer than 50 employee; (2) less than three million dollars in gross annual revenue in each of the last 3 fiscal years or (3) less than five million dollars in year-end total assets, calculated in accordance with generally accepted accounting principles. N.Y. Gen. Bus. Law Section 899-BB 2 (c)(2020).

The requirements set forth above take effect on March 21, 2020.

The law also requires any person or business which owns or licenses computerized data which includes private information to “disclose any breach of the security of the system following discovery or notification of the breach in the security system, to any resident of New York State, whose private information was or is reasonably believed to have been accessed or acquired by a person without valid authorization.    This provision took effect on October 23, 2019.

There is no private right of action under the law – meaning a NY resident or an employee cannot bring a claim against a business directly.  N.Y. Gen. Bus. Law Section 899-BB 2 (e)(2020).  However, the NY Attorney General can bring an action against a business and can recover penalties equal to $20 for each failure to provide the required notification or $5,000, whichever is greater, with a maximum statutory penalty of $250,000.

It would be wise to consult with the company’s IT provider to discuss compliance with this legislation.

Update On New Sexual Harassment Requirements For New York State Employers

New York State has passed some fairly significant requirements with respect to sexual harassment in the workplace.  Our firm’s co-founder, Ginger Schroder, had a newsletter update on the requirements published in The Milestone Press, a Legal Examiner affiliate. Learn more about the details of this critical new legislation here: https://milestone.legalexaminer.com/legal/urgent-update-on-new-sexual-harassment-requirements-for-new-york-state-employers/