Executive Summary: The New York Department of Labor (NYDOL) announced on May 27, 2021, that employees in New York must be permitted to use sick leave under the New York Paid Sick Leave Law to recover from any side effects stemming from COVID-19 vaccinations.

The NYDOL cited studies finding that some workers were avoiding getting vaccinated due to fear of missing a day of work, and thus, a day of wages. Besides permitting time off for receiving vaccinations, the NYDOL clarified that Section 196-b of the Labor Law allows employees to use sick leave “for mental or physical illness, injury, or health condition, regardless of whether it has been diagnosed or requires medical care at the time of the request for leave.” Thus, the NYDOL’s most recent guidance confirms that employers must permit their employees to use their accrued sick leave for any side effects related to receiving the vaccination.

Employers’ Bottom Line: As summarized in our previous alert, New York already requires employers to allow employees to use their accrued sick leave to get vaccinated. NYDOL has now clarified that sick leave may be used for side effects from vaccinations. It is widely known that side effects from the vaccination may mirror COVID-19 itself, so many employers have already been permitting the use of sick leave for side effects. This is now mandatory per the NYDOL’s guidance. New York employers who previously denied sick leave to employees experiencing side effects from the vaccine should retroactively allow employees to use their accrued sick leave time to ensure full compliance with the COVID-19 sick leave legislation Governor Andrew Cuomo signed into law on April 3, 2020.

We will continue to monitor COVID-19-related New York legislation as it winds its way through the legislature and onto the Governor’s desk so employers can ably navigate the thicket of their COVID-19 obligations to their employees.