Employers should note several recent legislative and regulatory developments in New York State related to the COVID-19 pandemic. On March 12, Governor Andrew Cuomo signed legislation entitling all public- and private-sector employees in the state to up to four hours of paid leave per injection to receive the COVID-19 vaccination. On March 11, Governor Cuomo announced that New York’s travel advisory requiring quarantines for certain travelers arriving from out of state will be lifted effective April 1, 2021, and that fully vaccinated individuals will no longer be required to quarantine following a close contact with a positive COVID-19 case. On March 7, Governor Cuomo signed legislation that will gradually terminate his executive powers related to COVID-19.
On March 12, 2021, Governor Cuomo signed legislation creating a new provision of the New York Labor Law applicable to both public- and private-sector employees. All private sector employees are entitled to receive paid leave “for a sufficient period of time” to receive a COVID-19 vaccination, up to four hours per vaccine injection. Leave must be paid at an employee’s regular rate of pay and in addition to otherwise-available paid leave – for example, paid sick leave required under New York state law and any leave an employer must provide pursuant to a collective bargaining agreement. The legislation does not specifically address whether leave must be provided in addition to paid time off offered by the employer in excess of legal or contractual requirements (e.g., vacation pay).
The legislation further provides that the right to leave can only be waived by a collective bargaining agreement (provided it expressly references the newly-created law). Finally, employers are prohibited from discriminating or retaliating against any employee who requests or obtains paid leave pursuant to the legislation.
The legislation takes effect immediately and sunsets on December 31, 2022. The legislation does not create a retroactive entitlement to leave, so any employees who were already vaccinated as of March 12, 2021 are not entitled to any additional paid leave.
While formal guidance is not yet available, Governor Cuomo’s March 12, 2022 press release provides that “employees will be granted up to four hours of excused leave per injection that will not be charged against any other leave the employee has earned or accrued” – suggesting that the New York State Department of Labor will take the position that leave is required in addition to any existing paid time off provided by an employer, required or otherwise.
On March 11, 2021, Governor Cuomo announced that, effective April 1, 2021, domestic travelers will no longer be required to quarantine after entering New York from another US state or territory. Under a November 2020 travel advisory, all individuals entering New York (including those returning home to New York after out-of-state travel) were required to quarantine upon entering New York, except for essential workers or those traveling from a state contiguous to New York. Individuals were also required to complete a traveler health form. State guidance was subsequently amended to exempt fully vaccinated asymptomatic individuals and asymptomatic individuals who tested positive for COVID-19 and travelled within three months of the onset of symptoms or positive test.
Similarly, as of March 10, 2021, New York guidance was revised to provide exemptions to required quarantines following close contact with a positive COVID-19 case. Specifically, asymptomatic individuals who have been fully vaccinated do not need to quarantine during the first three months after full vaccination if they are: a) fully vaccinated (e.g., two weeks following receipt of their final vaccine dose); b) within three months following receipt of the final vaccine dose; and c) have remained asymptomatic since their exposure to the close contact who tested positive for COVID-19. Individuals who previously tested positive for COVID-19 and who have recovered do not need to quarantine within three months of the date of symptom onset or the date of their positive test.
Note, however, that New York office guidance and return-to-work guidance still preclude close contacts of positive COVID-19 cases from entering the workplace, even if they are fully vaccinated and not required to quarantine.
Beginning April 1, 2021, post-travel quarantines will no longer be required. New York State will still require that individuals entering the state: a) monitor for symptoms of COVID-19 for 14 days; b) practice strict adherence to all recommended non-pharmaceutical interventions, including hand hygiene and the use of face coverings for 14 says (even if fully vaccinated); and c) immediately self-isolate if any symptoms develop and contact the local public health authority or their healthcare provider. New York will also recommend, but not require, that individuals complete a traveler health form.
On March 7, 2021, Governor Cuomo signed legislation that will gradually terminate his executive powers related to the COVID-19 pandemic. At the outset of the COVID-19 pandemic, the New York Legislature granted Governor Cuomo authority to issue certain directives related to the pandemic. He first used that authority to close nonessential businesses and later to gradually reopen such businesses on a regional basis, subject to capacity limitations which largely continue to the present day. Specifically, Governor Cuomo’s executive directors will expire on April 6, 2021, but he will be able to extend or modify existing directives, e.g., capacity limitations and reopening requirements for offices and indoor dining. In order to modify or extend existing directives, Governor Cuomo will need to provide five days’ notice to the New York Legislature along with a certification that the order is needed to address public health or safety concerns related to the COVID-19 pandemic. The New York Legislature and/or municipal leaders (to the extent an executive directive applies to a specific municipality) will then be able to review and comment on the proposed extension or modification. Governor Cuomo will be required to respond to comments to the extent he seeks to extend or modify an existing directive more than once.
Governor Cuomo will be able to bypass the five-day requirement if he certifies exigent circumstances related to an imminent threat to public health or safety, but the Commission of Health will need to provide certified information and Governor Cuomo will need to provide an opportunity for comment no later than the effective date of the extension or modification.
To the extent they do not conflict with statewide orders in effect, municipalities will be authorized to adopt local executive orders addressing the COVID-19 pandemic. Finally, the New York Legislature will be able to terminate any directive at any time.
Employers with operations in New York should immediately revisit their paid leave policies, including any incentives the employer has offered to employees to encourage vaccination, to ensure compliance with the new COVID-19 vaccination paid leave legislation. Employers may also wish to revisit their travel policies to the extent they addressed New York’s travel advisory requirements. Finally, employers should continue to comply with existing executive directives limiting the operation of nonessential businesses and, if such directives are lifted, watch for any municipal executive orders which may implicate their operations.
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
New York
Leni D. Battaglia
Melissa D. Hill
Kimberley E. Lunetta
Melissa C. Rodriguez
Douglas T. Schwarz
Kenneth J. Turnbull