New York City Council passes COVID child vaccination leave law

New York City parents working in the private sector will now be able to use the constantly-evolving Earned Safe and Sick Time Act to have their children vaccinated against COVID-19. The legislation amending the Act, which Mayor Bill de Blasio is expected to sign, will give parents four hours of paid leave per injection.

When signed by Mayor de Blasio, the legislation will immediately become effective retroactive to November 2, the date of the vote by the Centers for Disease Control and Prevention to authorize use of the Pfizer-BioNTech vaccination in children ages 5-11.

What are the legislation’s requirements?

The new amendment to the Earned Safe and Sick Time Act requires private employers to provide an employee with up to four hours of paid leave per injection for the child’s COVID vaccination. The employee must use the time to accompany the child to receive an approved COVID vaccine injection, or to care for a child who may be experiencing negative side effects of the vaccine. For an employee to be eligible, the employee must be a parent (biological, foster, step, or adoptive, or a legal guardian, or a person standing in loco parentis), and the child must be under age 18 or, if 18 or older, incapable of self-care due to mental or physical disability.

COVID child vaccination leave must be in addition to any existing leave already afforded to the employee, including any COVID-19 vaccination leave to which the employee is entitled under New York Labor Law. Moreover, employers are prohibited from requiring an employee to cover any missed time by working additional hours, or to find a replacement. However, employers may require seven days’ reasonable notice of the employee’s intention of using child vaccination leave, if the need is foreseeable. Employers may also request reasonable documentation from the employee demonstrating that the child did receive a COVID vaccine injection. Employers may require that the documentation be provided within seven days of the employee’s use of child vaccination leave.

Employees choosing to use the COVID child vaccination leave must be compensated at their regular rate of pay. They also must be paid by the next regular pay date after the leave is taken. Employees who took time off for child vaccine purposes from November 2 through the date that the legislation is signed must be compensated no later than the next payday after the signing or have the time off re-credited to their leave accounts.

What are the penalties for non-compliance?

Employers may be subject to fines and penalties for failing to provide eligible employees with child vaccination leave. There will be a 60-day phase-in period during which employers will be provided written notice of an alleged violation and a 15-day period in which to correct the violation.

After the 60-day phase-in period, the penalties will be as follows:

• For each instance of COVID child vaccination time for which the employer unlawfully fails to provide compensation, three times the wages that should have been paid or $250, whichever is greater.
• For each instance of COVID child vaccination time that the employer unlawfully denies or charges against an employee’s paid safe/sick time accruals, $500.

Employers may also be subject to fines and penalties for taking adverse action against an employee who chooses to use child vaccination leave.

May employers waive the child vaccination leave through a collective bargaining agreement?

No. The legislation states that it may not be waived by a collective bargaining agreement.

How should employers prepare?

This law takes effect immediately and retroactively upon the Mayor’s signature. Employers should have systems and processes in place to tackle the impending influx of leave requests and to pay the appropriate retroactive benefits. Employers will also find it prudent to update existing leave policies, alert employees of the availability of COVID child vaccination leave, and ensure that supervisors receive training to properly handle employee leave payments and requests.

The law will expire on December 31, 2022.

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