Leave for COVID-19 Vaccinations applicable to employees of the State as the employer

The New York State Department of Civil Service has published Bulletin 2021-1, of its Attendance and Leave Manual Policy adding a new section, §21.12,  addressing the State's attendance and leave policy applicable to officers and employees of the State as the Employer absent from work for the purpose of COVID-19 vaccinations. 

Attendance and Leave Manual Policy §21.12 

"Legislation enacted in March 2021 (Chapter 77, Laws of 2021) amended the Civil Service Law to entitle all employees regardless of Attendance Rules coverage to take up to four hours of paid leave for receiving each COVID-19 vaccination. This provision became effective March 12, 2021. A copy of this legislation is attached.*

"Specifically, section 159-c of the Civil Service Law was added to entitle State officers and employees to paid leave without charge to leave credits to receive COVID-19 vaccinations. 

"Employees who received a vaccination during work hours prior to March 12, 2021, are required to charge leave accruals or be granted a leave without pay.

"The appointing authority may require satisfactory medical documentation that the employee’s absence was for the purpose of the COVID-19 Vaccination.

"Employees are entitled to a leave of absence for COVID-19 vaccinations scheduled during the employees’ regular work hours.  Employees who undergo vaccinations outside their regular work schedules do so on their own time.  For example, employees are not granted compensatory time off for vaccinations that occur on pass days or holidays.

"Up to four hours of paid leave is allowed for each dose of the vaccination.

"Accordingly, employees who receive a vaccination that is administered in two doses would get up to four hours of paid leave for each dose.  Travel time (based on travel to and from the employee’s worksite) is included in this four-hour cap.  Absence beyond the four-hour caps must be charged to leave credits.

"Any questions about these provisions should be referred to the Attendance and Leave Unit of the Department of Civil Service at (518) 457-2295"

 

*Attachment

"Chapter 77 of the Laws of 2021 amended the Civil Service Law effective March 12, 2021, by adding §159-c, to read as follows:

"§159-c. Leave time for COVID-19 vaccination. 1. Every public officer, employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system shall be entitled to absent himself or herself and shall be deemed to have a paid leave of absence from his or her duties or service for a sufficient period of time, not to exceed four hours per vaccine injection, unless such officer or employee shall receive a greater number of hours pursuant to a collectively bargained agreement or as otherwise authorized by the employer, to be vaccinated for COVID-19.

"2. The entire period of the leave of absence granted pursuant to this section shall be excused leave and shall not be charged against any other leave such public officer or employee is otherwise entitled to.

"3. Nothing in this section shall be deemed to impede, infringe, diminish or impair the rights of a public employee or employer under any law, rule, regulation or collectively negotiated agreement, or the rights and benefits which accrue to employees through collective bargaining agreements, or otherwise diminish the integrity of the existing collective bargaining agreement."

 

 

New York State laws amended to provide time off with pay to receive COVID 19 vaccination for employees in public sector and in the private sector

With respect to employees in the public sector,* New York State's Civil Service has been amended by adding a new section, §159-c, to read as follows: 

§159-c. Leave time for COVID-19 vaccination. 1. Every public officer,  employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee  of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New Yorkstate teachers' retirement system shall be entitled to absent himself or herself and shall be deemed to have a paid leave of absence from his or her duties or service for a sufficient period of time, not to exceed four hours per vaccine injection, unless such officer or employee shall receive a greater number of hours pursuant to a collectively bargained agreement or as otherwise authorized by the employer, to be vaccinated for COVID-19.

2. The entire period of the leave of absence granted pursuant to this  section shall be excused leave and shall not be charged against any other leave such public officer or employee is otherwise entitled to.

3. Nothing in this section shall be deemed to impede, infringe, diminish or impair the rights of a public employee or employer under any law, rule, regulation or collectively negotiated agreement, or the rights and benefits which accrue to employees through collective bargaining agreements, or otherwise diminish the integrity of the existing collective bargaining agreement.

With respect to employees in the private sector, New York State's Labor Law has been amended by adding a new §196-c to read as follows:

§196-c. Leave time for COVID-19 vaccination. 1. Every employee shall be provided a paid leave of absence from his or her employer for a sufficient period of time, not to exceed four hours per vaccine injection, unless such employee shall receive a greater number of hours pursuant to a collectively bargained agreement or as otherwise authorized by the employer, to be vaccinated for COVID-19.

2. The entire period of the leave of absence granted pursuant to this section shall be provided at the employee's regular rate of pay and shall not be charged against any other leave such employee is otherwise entitled to, including sick leave pursuant to section one hundred ninety-six-b of this article, or any leave provided pursuant to a collective bargaining agreement.

3. The provisions of this section may be waived by a collective bargaining agreement, provided that for such waiver to be valid, it shall explicitly reference this section of law.

*  See also Chapter 78 of the Laws of 2021 establishing a Coronavirus Disease 2019 [COVID-19] public employee death benefit for individuals who reported to their usual place of employment or an alternate worksite at the direction of their employer on or after March 1, 2020 and such individual contracted COVID-19 within 45 days of reporting to such workplace as confirmed by a laboratory test or by a licensed physician and such individual died on or before December 31, 2022.

Both Chapter 77 and 78 are now in effect and will be "deemed repealed" effective December 31, 2022.

 

An employee's suspension with pay pending disciplinary action may not constitute work for the purposes of qualifyiing for unemployment insurance benefits

§75.3 of the Civil Service Law, and some collective bargaining agreements, authorize the suspension of an employee with pay pending the hearing and determination of disciplinary charges filed against the employee alleging incompetency or misconduct. 

An employee [Claimant] was served with disciplinary charges and was suspended without pay from her employment for several 30-day periods. As relevant here, Claimant filed an original claim for unemployment insurance benefits effective January 15, 2018 and received benefits. The employer [Employer] then suspended Claimant with pay effective January 30, 2018, and Claimant did no further work for the Employer before being terminated from her employment effective January 25, 2019. Claimant then filed a subsequent claim for unemployment insurance benefits effective January 28, 2019. 

A Workers' Compensation Administrative Law Judge [ALJ] sustained the Department of Labor's administrative determination that Claimant was ineligible to receive further unemployment insurance benefits. The ALJ, in essence, held that a suspended employee is not performing any "work in employment" for which he or she could receive remuneration as required by §527[6] (emphasis supplied in Appellate Division's decision). 

Claimant appealed the ALJ's ruling to the Unemployment Insurance Appeal Board [Board]. The Board, sustaining the ALJ's determination, concluded that Claimant "had insufficient wages to meet the work requirements to re-qualify for a subsequent original claim and had not worked in employment and been paid remuneration for such work equal to at least 10 times [her] weekly benefit rate."

The Board had rejected Claimant contention that such monies did "constitute remuneration for work ... so as to count toward her eligibility to file a subsequent claim", citing the Board's decision set out in Matter of Appeal Board No. 569753* in support of her claim. Claimant appealed. 

Noting that Claimant performed no work for the Employer during the relevant period, the court said the question to be resolved is whether "the monies she received while suspended [with pay] constituted remuneration for work in employment so as to count toward her eligibility to file a subsequent valid original claim."

The Appellate Division then affirmed the Board's determination, explaining that to file a subsequent valid original claim, the applicant "must have worked in employment and been paid remuneration for such work since the beginning of such previous claim in an amount equal to at least [10] times the claimant's weekly benefit rate," citing Labor Law §527[6].**

The Appellate Division observed that the Board had adopted the decision of the ALJ, rejecting Claimant's argument that its decision in Appeal Board No. 569753 controlled, and opined that it perceived "nothing unreasonable in that distinction, which comports with the statutory language, and therefore [found] substantial evidence in the record to support the Board's determination that [Claimant] had not 'worked in employment and been paid remuneration for such work' in a sufficient amount to file a subsequent valid original claim."

* Claimant had relied upon Appeal Board No. 569753 in advancing her appeal to the Board, pointing out that in Board No. 569753 the Board held that an individual serving a paid suspension under the terms of a collective bargaining agreement was performing a service so as to fall within the statutory definition of employment. See https://uiappeals.ny.gov/system/files/documents/569753-appeal-decision.pdf.

** §527[6] of the Labor Law provides as follow: "Work requirement. An individual who has filed a previous valid original claim pursuant to this section must have worked in employment and been paid remuneration for such work since the beginning of such previous claim in an amount equal to at least ten times the claimant's weekly benefit rate in order to be able to file a subsequent valid original claim.

Click HEREto access the text of the Appellate Division's ruling.