New York, California Address COVID-19 Vaccines Through Leave Laws, Guidance

Author: Emily Scace, XpertHR Legal Editor

March 15, 2021

Under a new law signed by New York governor Andrew Cuomo on March 12, both public and private sector employees are eligible for paid leave to obtain the COVID-19 vaccine.

The law, which took effect immediately upon signing, requires all New York employers to provide paid leave for a sufficient period of time for employees to be vaccinated for COVID-19, up to four hours per injection. The leave must be paid at the employee's regular pay rate and may not be charged or deducted against any other leave to which an employee is entitled, such as sick leave.

In addition, employers are prohibited from discriminating or retaliating against employees for requesting or obtaining leave to be vaccinated for COVID-19 or exercising other rights protected by the law.

The law expires December 31, 2022.

California DFEH Guidance

In California, the state Department of Fair Employment and Housing (DFEH) released updated guidance detailing the agency's position on an employer's ability to mandate COVID-19 vaccination for its employees.

The guidance confirms that employers are generally allowed to mandate FDA-approved COVID-19 vaccines as long as the employer provides reasonable accommodations for employees who cannot receive the vaccine because of a disability or a sincerely held religious belief. This position generally mirrors the stance of the federal Equal Employment Opportunity Commission (EEOC), which published guidance surrounding COVID-19 vaccinations in December 2020.

Employers must also ensure that their vaccination policies and practices do not violate laws prohibiting workplace discrimination, harassment and retaliation on the basis of a protected characteristic or protected activity. For example, an employer may not discriminate against or harass an employee because of a disability that interferes with the employee's ability to obtain a COVID-19 vaccine or a request for reasonable accommodations for a religious belief.

However, the guidance emphasizes that employers are not required to accommodate objections to the COVID-19 vaccine that are unrelated to religion or disability, such as apprehension about the vaccine's safety.