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March 15, 2021

Client Alert

By: Howard S. Lavin, Elizabeth E. DiMichele, GraceAnn Caramico

On Friday, March 12, 2021, New York Governor Andrew Cuomo signed into law a bill (A3354B/S2588A) that grants time off for public and private sector employees to receive a COVID-19 vaccination.  Earlier last week, on March 8, 2021, the Centers for Disease Control and Prevention (CDC) issued its first recommendations for fully vaccinated individuals.  As vaccines become more readily available and increased percentages of the population become vaccinated, federal, state, and local authorities will likely continue to introduce and amend their current laws and guidelines regarding COVID-19-linked benefits and protections.

New York’s Paid Time Off for Vaccination

Assembly Bill A3354B/Senate Bill S2588A provides New York employees, in both the public and private sectors, up to four hours of paid leave to receive a COVID-19 vaccine injection.  This new law enables employees to receive up to eight hours of paid leave if they receive a two-dose vaccination, such as the Pfizer-BioNTech or Moderna vaccine.  The law further provides that employees may receive more than four hours of paid time off for vaccination, if authorized by their employers or negotiated by their union.  Under this law, private sector employees will be paid at their regular rate of pay during the leave time.  Leave taken to receive a COVID-19 injection under this law cannot be charged against any other leave entitlement, including leave provided pursuant to a collective bargaining agreement.  However, under certain circumstances, these benefits may be waived by unions through collective bargaining negotiations.  Discrimination and retaliation against employees for exercising their rights under this law are specifically forbidden.  This law is effective immediately and is currently set to expire on December 31, 2022.

COVID-19 Safety Guidelines

The CDC has now issued guidance for individuals who are fully vaccinated, meaning those who have received either the second dose in a 2-dose vaccine, such as Pfizer-BioNTech or Moderna, or a single-dose vaccine, such as Johnson & Johnson, at least two weeks ago.  Those individuals who fall outside of the two-week mark are not fully protected and should continue to take the same precautions as those who have not been vaccinated.  Among other things, the CDC advises that, generally, fully vaccinated people can:

• visit with other fully vaccinated people indoors without wearing masks or physical distancing;

• visit with unvaccinated people from a single household, who are at low risk for severe COVID-19 disease, indoors without wearing masks or physical distancing; and

• refrain from quarantining and testing following a known exposure if asymptomatic.

At this time, the CDC recommends that fully vaccinated people should continue to:

• take precautions in public, such as wearing a well-fitted mask, practicing physical distancing, covering their coughs and sneezes, and washing their hands often;

• wear a well-fitted mask, practice physical distancing, and adhere to other prevention measures when visiting with unvaccinated people who are at increased risk for severe COVID-19 disease or who have an unvaccinated household member who is at increased risk for severe COVID-19 disease;

• wear a well-fitted mask, maintain physical distance, and practice other prevention measures when visiting with unvaccinated people from multiple households;  

• avoid medium and large in-person gatherings, crowds, and poorly ventilated spaces;

• isolate and get tested if experiencing COVID-19 symptoms, especially following an exposure to someone with suspected or confirmed COVID-19 symptoms;

• not visit or attend a gathering if they have tested positive for COVID-19 in the prior 10 days;

• follow guidance issued by individual employers; and

• follow CDC and state and local health department travel requirements and recommendations.

According to the CDC, COVID-19 vaccines are effective at keeping people from getting sick.  There is a growing body of evidence that suggests that fully vaccinated people are less likely to have asymptomatic infection and potentially less likely to transmit SARS-CoV-2 to others, including co-workers.  The increased data regarding COVID-19 vaccines has also led states to issue new COVID-19 safety guidelines.  For example, on March 3, 2021, in New York, Governor Cuomo announced the elimination of quarantine or test out requirements for domestic travelers from non-contiguous states to New York State, but only within 90 days of their being fully vaccinated.  Governor Cuomo furthered amended his guidance on March 11, 2021, and advised that beginning on April 1, 2021, quarantine for domestic travel to New York will no longer be required, but mandatory quarantine will remain for international travelers.  The Department of Health still recommends quarantine as an added precaution and all travelers must complete the Traveler Health Form.

Significantly, the CDC advises that how long vaccine protection lasts and how much vaccines protect against emerging SARS-CoV-2 variants are still under investigation.  These open questions warrant caution about eliminating COVID-19 safety guidelines at this time. 

Some states, such as Alabama, Mississippi, Montana, Iowa, and Texas, have ended their mask mandate.  While some employees may point to the CDC’s recommendation to relax certain measures for fully vaccinated people or a state’s decision to end its mask mandate as a reason to not follow an employer’s COVID-19 safety guidelines, employers are free to maintain safety precautions, including social distancing and mask requirements.  Moreover, some cities have instituted mask rules apart from state guidelines, so companies should continue to check local rules and regulations. 

The CDC has yet to issue concrete guidance for returning back to work after workforces have been vaccinated, or at least largely vaccinated.  The only guidance the CDC has currently provided is that the widespread vaccination of employees can be one consideration for restarting operations and returning to the workplace.  Other factors the CDC advises employers to consider include:  

• the necessity for employees to physically return to work;

• the transmission rates of COVID-19 in the community;

• the ability of employees to continue to practice prevention measures when in the workplace; and

• local or state mandates for business closure restrictions. 

Since it is unlikely that the entirety of an employer’s workforce will be vaccinated, and those unvaccinated employees are unlikely to reside in the same household, employers may want to look to the CDC’s vaccination guidelines for gatherings with multiple households if they restart or increase their on-site operation before the CDC issues workplace guidelines addressing  employees who have been fully vaccinated.  Therefore, employers should consider requiring both vaccinated and unvaccinated employees to continue to wear a well-fitted mask, maintain physical distance, and practice other prevention measures while at work.  Employers also should require employees to isolate and get tested if experiencing COVID-19 symptoms, even if they are vaccinated.  And, employers must continue to follow applicable state and local guideless.

In terms of employees, the EEOC takes the position that it is permissible to ask for proof of vaccination, such as a vaccine card, provided that it does not contain medical information.  The EEOC reasons that requesting proof of receipt of a COVID-19 vaccine is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit such information. 

Employers whose employees interact with the public should be particularly careful in relaxing their COVID-19 guidelines, because employees generally would not know if customers or clients are fully vaccinated.  

Employers should continue to monitor for newly implemented COVID-19 related laws, as well as federal, state, and local COVID-19 guidance.  As more employees potentially become vaccinated, employers should be prepared to amend their safety guidelines and employee policies to comply with any such laws or guidance as needed.

______________________________

For More Information: 

Howard Lavin

Elizabeth DiMichele 

GraceAnn Caramico 

This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome.