New York state has extended its law requiring paid COVID-19 vaccination leave for employees through Dec. 31, 2023. The law had been scheduled to expire Dec. 31, 2022. It requires employers to provide a sufficient period of paid time to be vaccinated for COVID-19, up to four hours per vaccine injection. The law applies to all private employers and specified public employers. Workers may use leave under the state’s paid sick leave law for vaccine recovery.
New York Coronavirus Guidance
In response to the Coronavirus (COVID-19) global pandemic, state governments have issued guidance to help employers comply with labor and employment laws during the outbreak. Employer resources on the actions New York has taken during this time are provided below.
Because states are continually monitoring and responding to developments related to COVID-19, employers are strongly advised to visit the New York State Department of Health COVID-19 webpage for the latest updates and business-related resources. Local health department contact information can be found here.
Beginning in September 2021, the New York mandate at issue requires all health care workers in the state to be vaccinated against COVID-19. The only exception is for situations in which a worker presents written proof from a health care provider showing that the vaccine would be “detrimental” to the worker’s health “based on a pre-existing condition.”
Supreme Court Case
On Dec. 13, 2021, the U.S. Supreme Court issued an order denying a request from a group of health care workers to be exempt, on religious grounds, from New York’s statewide vaccination requirement for health care workers. The court previously rejected a similar challenge to Maine’s vaccine mandate for health care workers on Oct. 29, 2021.After two lower courts declined, the Supreme Court also refused to block the law. Because the case was brought on an emergency basis, the court did not explain its decision.
However, a dissenting opinion notes that under guidance issued by the New York Department of Labor on Sept. 25, 2021, workers who lose their jobs because of their refusal to get vaccinated are automatically disqualified from receiving unemployment benefits in the state.
The upheld mandate applies to all hospitals, nursing homes, home care agencies and other health care facilities in New York. These employers should become familiar with the state vaccine mandate and the Supreme Court’s decision. In addition, all employers should become familiar with guidance on federal fair employment laws and workplace vaccination mandates issued by the federal Equal Employment Opportunity Commission (EEOC).
New York City Mandate
The mayor of New York City (NYC) has announced that, starting Dec. 27, 2021, nearly all employers in the city will be required to ensure their employees are vaccinated against COVID-19. In-person workers will need to provide proof of two vaccine doses, except for those who have already received the Johnson & Johnson vaccine. The new vaccine mandate will apply to approximately 184,000 businesses.
While delivering the announcement on Dec. 6, 2021, NYC Mayor Bill DeBlasio indicated that workers will be able to ask for religious and medical exemptions. Acceptable proof of vaccination will include a vaccination card issued by the Centers for Disease Control and Prevention (CDC), the New York State Excelsior Pass, the Clear Health Pass, and the NYC COVID Safe App.
The mayor also indicated that NYC’s existing COVID-19 restrictions for entering certain public places, such as restaurants and theaters, will expand to require:
- At least one vaccine dose for children ages 5 to 11, starting on Dec. 14, 2021; and
- Two vaccine doses for most adults and children aged 12 and older, starting on Dec. 27, 2021.
Supreme Court Rejects Religious Challenge to NYC’s Vaccine Mandate for Public Schools
On Feb. 11, 2022, the U.S. Supreme Court issued an order denying a request by a group of teachers and school administrators to be exempt, on religious grounds, from New York City’s (NYC) COVID-19 vaccination requirement for all in-person public school workers.
The court previously rejected a similar request filed by the same group in September 2021. The court has also rejected similar challenges to New York’s statewide vaccine mandate for health care workers (Dec. 13, 2021) and Maine’s vaccine mandate for health care workers (Oct. 29, 2021). Because all of these cases were brought on an emergency basis, the court’s orders did not include an explanation.
Background of NYC Vaccination Mandate
Beginning Sept. 27, 2021, the NYC mandate at issue requires all in-person teachers and other public school workers to be vaccinated against COVID-19. While many similar orders and laws grant exceptions for medical reasons, religious reasons or both, the NYC mandate does not allow any exceptions.
Supreme Court Case
NYC public school employees sued the city to block it from enforcing the COVID-19 vaccine mandate against them due to their religious beliefs. After lower courts declined, the Supreme Court also refused to block the law.
The upheld mandate only covers NYC employees and volunteers who work in school settings. Private employers should become familiar with guidance on federal fair employment laws issued by the federal Equal Employment Opportunity Commission, along with all applicable local, state and federal laws on vaccine mandates and religious exceptions.
New York State’s Health and Essential Rights Act (NY HERO Act) was passed to prevent occupational exposure to airborne infectious diseases. The NY HERO Act covers all private employers in the state. The Act was signed into law on May 5, 2021, and was amended on June 11, 2021. The amendments, among other things, have extended the compliance deadline for key portions of the Act from June 4, 2021, to July 5, 2021.
The NY HERO Act created Section 218-b of the New York Labor Law, which requires employers to establish an airborne infectious disease exposure prevention plan. Employers must post the plan in their workplace and meet other requirements for making their plans available to employees.
The Commissioner of Health is required to create a model airborne infectious disease standard. Employers can adopt the model standard or establish an alternative plan that meets or exceeds its requirements. This section of the Act takes effect on July 5, 2021.
The Act also created Section 27-d of the law, which permits employees to establish and administer joint labor-management workplace safety committees. This section of the Act takes effect on Nov. 1, 2021.
New York state enacted a law providing leave for employees subject to a quarantine or isolation order due to COVID-19, effective March 18, 2020. Whether and how much employee compensation is required during the leave depends on the size and net income of the employer, as follows:
- $1 million or less, and up to 10 employees: Unpaid leave through the end of the quarantine or isolation. (Employees are eligible for paid family leave and disability benefits.)
- More than $1 million, and up to 10 employees: Leave through the end of the quarantine or isolation, at least five days of which must be paid. (After five days, employees are eligible for paid family leave and disability benefits.)
- Between 11 and 99 employees: Leave through the end of the quarantine or isolation, five days of which must be paid. (After five days, employees are eligible for paid family leave and disability benefits.)
- 100 or more employees: 14 days of paid sick leave during quarantine or isolation.
- Public employers: 14 days of paid sick leave during quarantine or isolation.
The law also allows paid family leave for employees to care for children under a quarantine or isolation order. Employees eligible for federal COVID-19-related leave may take state leave only to the extent that it exceeds the federal leave. Exceptions to the leave requirement apply for asymptomatic or undiagnosed employees who can work virtually, and for employees who traveled to affected regions (including states on New York’s travel advisory) for non-work purposes.
According to guidance on the law from the New York Department of Labor, employees may not report to work and must be given paid leave for repeat periods of isolation or quarantine if:
- They test positive for COVID-19 after returning to work following isolation or quarantine; or
- They continue to test positive for COVID-19 after isolation or quarantine ends.
However, except for nursing home workers, it is not recommended that employees be tested to discontinue quarantine or isolation. Leave is limited to three periods of isolation or quarantine, and the second two periods must be based on a positive COVID-19 test. (On April 22, 2021, the New York Department of Health issued updated “Protocols for Personnel in Healthcare and Other Direct Care Settings to Return to Work Following COVID-19 Exposure – Including Quarantine and Furlough Requirements for Different Healthcare Settings.”)
In addition, the guidance states that employees not under a quarantine or isolation order, whose employers nonetheless bar them from work due to COVID-19 exposure (or possible exposure), must be paid their regular rate until they return to work or enter quarantine or isolation. Notably, the COVID-19 leave law itself says leave is required only for employees who are under a quarantine or isolation order.
The state’s earlier FAQs on the law remain valid. For further information, contact the New York Department of Labor.
New York has also passed a state law requiring that employees receive a sufficient period of paid leave to be vaccinated for COVID-19, up to four hours per vaccine injection, including booster shots. The law applies to all private employers and specified public employers. Employees must be paid their regular rate of pay during the leave, and the leave may not be counted against any other leave to which the employee is entitled, including paid sick leave required by state law. The law took effect March 12, 2021, and expires Dec. 31, 2023 (extended from an earlier expiration date of Dec. 31, 2022). The New York Department of Labor has issued FAQs on the law.
Guidance from the New York Department of Labor states that workers may take leave under the state’s paid leave law to recover from COVID-19 vaccination side effects.
- Waiver of 7-day waiting period requirement for accessing unemployment insurance benefits for people who are out of work due to Coronavirus (COVID-19) closures or quarantines. Click here for more information.
Guidance for Health Insurers
- The State outlined a series of actions that New York health insurers are required or advised to take, including keeping New Yorkers informed regarding available benefits; offering, where possible, telehealth medical advice and treatment; and preparing insurers to cover the costs if a COVID-19 immunization should become available.
- COVID-19 Business Resources (includes FAQs for businesses, a resource guide to small business disaster loans, and contact information for business questions).
- New York City face covering law