New York City Is Poised to Require Employers to Provide Paid COVID-19 Child Vaccination Leave

[UPDATE, Dec. 24, 2021: Bill becomes effective due to Mayor de Blasio’s inaction. Paid leave retroactive to Nov. 2, 2021.]

As we previously reported, New York was one of the first states to require employers to provide paid COVID-19 vaccination leave for public and private employees. On November 23, 2021, the New York City Council approved a measure, Int. 2448-A (“Bill”), that would provide additional paid sick leave for employees who are parents or legal guardians of a child under the age of 18 to accompany their child to receive the COVID-19 vaccine, or provide care for the child due to the vaccine’s side effects. The Bill, which awaits Mayor de Blasio’s signature, would take effect immediately and apply retroactively to November 2, 2021. 

Leave Requirements

The Bill amends the Earned Safe and Sick Time Act (ESSTA) to provide employees with up to four hours of paid leave for the COVID-19 vaccination of such employee’s child (“Child Vaccine Leave”). An employee is entitled to four hours per COVID-19 vaccine injection, per child. Notably, the Bill is silent as to whether booster shots are covered, unlike New York’s vaccine paid leave law, which explicitly covers time off to receive a booster.

Child Vaccine Leave can be used to accompany a child to receive a COVID-19 vaccine injection, and to care for a child who cannot attend school or childcare due to the vaccine’s temporary side effects.

Importantly, unlike New York’s statewide employee vaccination leave law and the other provisions of ESSTA, the Child Vaccine Leave requirement cannot be waived under the terms of a collective bargaining agreement.

Key Definitions & Provisions

The Bill defines “parent” as “a biological, foster, step- or adoptive parent, or a legal guardian of a person, or a person who currently stands in loco parentis” or a person who stood in loco parentis when the child was a minor. A child includes an older child who is incapable of self-care because of a mental or physical disability. 

Under the Bill, Child Vaccine Leave must be paid at the employee’s “regular rate of pay” at the time the leave is taken, and may not be charged against the employee’s accrual or use of sick and safe time under ESSTA, and must be paid no later than the next regular payroll period. Employers may require reasonable notice (but no longer than seven days) of the employee’s intention to use Child Vaccine Leave, when such leave is foreseeable. Employers may also collect reasonable documentation of proof of the child’s vaccination from the employee.

Like with other types of sick and safe leave under ESSTA, employers may not require employees to work additional hours or search for or find a replacement employee to cover the time off taken, and are prohibited from taking any adverse actions against any employee because the employee exercised or attempted to exercise rights under the Bill. The Bill also provides schedules for determining monetary relief that may be awarded to an aggrieved employee for various violations, including failure to compensate for Child Vaccine Leave, denying such leave, or improperly charging such leave against an employee’s sick and safe time accruals. The Bill sunsets on December 31, 2022.

What New York City Employers Should Do Now

• Prepare to provide employees with up to four hours of paid time off, per child, to obtain each COVID-19 vaccination injection or care for the child due to potential temporary side effects following the vaccination.
• Determine whether any employee may be eligible for paid leave due to an absence from work between November 2, 2021, and the Bill’s effective date because an eligible employee accompanied a child to obtain a COVID-19 vaccination, or took time to care for the child due to any temporary side effects following the vaccination. In this event, determine whether any sick and safe time accruals under ESSTA should be credited to the employee’s available sick and safe time bank. 
• Await further guidance regarding the Bill’s status, and any notices, posting, and other logistical requirements that may be implemented after the Bill becomes effective.
• If the Bill is enacted, review and revise your ESSTA policy to incorporate the Child Vaccine Leave requirement.

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*Kamil Gajda, Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this Insight.