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Date: March 30, 2021

1. If you are found ineligible to receive unemployment insurance benefits, you will receive a determination explaining the reason. If you disagree, you may request a hearing within 30 days from the date of.
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In late March 2021, the New York State Department of Labor (NYSDOL) issued much anticipated guidance on New York state’s new COVID-19 vaccine leave law. The law, which was signed by Governor Cuomo and went into effect on March 12, 2021, requires employers to provide up to four hours of paid leave upon request to employees who work in the state of New York and are scheduled to receive a COVID-19 vaccine. Under the law, an employee is entitled to this paid leave for each dose of the vaccine that the employee receives.

The law as written, however, left open a number of questions regarding the limits of any leave entitlement as well as an employer’s ability to request supporting documentation for the leave. The NYSDOL’s new guidance now provides this much needed clarification for employers:

• Leave for Employee’s Own Vaccination. The NYSDOL’s guidance confirms that employees are only entitled to paid leave under the law to receive their own COVID-19 vaccine. As a result, employees may not request or receive paid leave to assist a relative or other person in getting a vaccine.
• Notice and Proof of Vaccination. The NYSDOL states that the law does not prohibit employers from requiring proof of vaccination to support a request for paid leave. Nor does the law prohibit employers from requiring advanced notice from employees for any period of paid leave. As we previously reported, the EEOC has also confirmed that requesting proof of vaccination will not violate the Americans with Disabilities Act. The NYSDOL cautions, however, that employers should nevertheless be mindful of any confidentiality requirements related to vaccination records.
• Substitution of Other Paid Leave. The NYSDOL’s guidance confirms that the law does not allow employers to substitute an employee’s other existing leave to cover a period of absence for COVID-19 vaccination. As a result, New York employers may not require employees to use accrued vacation, sick leave or other paid time off to satisfy the new paid leave requirements.
• Retroactive Application. The law itself did not state whether the paid leave requirements apply to employees who received vaccine doses prior to the law’s March 12, 2021 effective date, but the NYSDOL’s guidance now confirms that the law does not apply retroactively. Nevertheless, the NYSDOL clarifies that employers are still free to voluntarily provide retroactive paid leave to such employees.

New York’s COVID-19 vaccine leave law remains in effect until December 31, 2022. In light of the NYSDOL’s new guidance, New York employers should take steps to ensure that they have effective procedures in place to manage employee requests for COVID-19 vaccination leave. All employers who are considering a workplace vaccination mandate should be prepared to provide paid leave to employees who obtain COVID-19 vaccines in order to return to the workplace. As with any other request for medical documentation, whether related to leave or workplace accommodations, New York employers should also ensure that appropriate confidentiality protections are applied to proof of vaccination or other documentation obtained from employees.

FOR MORE INFORMATION

We will continue to monitor any further developments regarding New York’s COVID-19 vaccine leave law, as well as similar leave laws that may be enacted in other states or municipalities. For more information, please contact:

Rebecca Brazzano
212.908.3941
Rebecca.Brazzano@ThompsonHine.com

Matthew R. Kissling
216.566.5586
Matthew.Kissling@ThompsonHine.com

M. Scott Young
513.352.6617
Scott.Young@ThompsonHine.com

or any member of our Labor & Employment practice group.

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© 2021 THOMPSON HINE LLP. ALL RIGHTS RESERVED.

Credit unions should be aware that Attorney General Letitia James on Wednesday warned about perpetrators using individuals’ personal information to file fraudulent unemployment benefits with the New York State Department of Labor.

Twitter Nys Unemployment

Incidents of scammers with access to detailed databases with personally identifiable information have been reported, with scammers seeking out cooperation from “mules” who are used as intermediaries for filing claims online seeking benefits, James warned. She said the scammers are exploiting the avalanche of legitimate claims that have hit the Department of Labor due to the COVID-19 crisis.

As previously reported, scammers posing as unemployed, and in many instances, out-of-state workers, have been using the names of people with stolen identities to steal unemployment benefits, leading New York credit unions — already dealing with the difficulties of the pandemic — to take a closer look at incoming out-of-state unemployment benefits being deposited in members’ accounts.

“In light of new reports that the New York State Department of Labor has received fraudulent unemployment claims, credit unions, already on the lookout for fraudulent out-of-state unemployment benefit deposits, should continue to employ vigilant practices as they process the millions of unemployment checks that are currently pouring into credit unions — including those from the New York State Department of Labor,” said Sarah Hodgens, the New York Credit Union Association’s director of compliance.

Nys Department Of Labor Twitter

While credit unions continue to monitor unemployment benefit deposits to member accounts, the public is also encouraged to be aware if they receive anything from the state Department of Labor that they were not expecting.

The FBI in Buffalo warned residents about state Department of Labor unemployment benefit scams, and in a June 18 Twitter post, tweeted: “ALERT: Have you received a letter or debit card from the NYS Department of Labor regarding an unemployment insurance monetary benefit that you did NOT apply for? Someone may be using your identity in a fraud scheme.”

While the Department of Labor is reportedly developing a comprehensive set of instructions that it will make public for those who may be impacted by unemployment benefits fraud, Republican Assemblyman Stephen Hawley of Batavia (District 139) issued a statement on June 22 encouraging citizens to stay vigilant, monitor their mail and should they notice anything suspicious coming from the Department of Labor, particularly when they have not claimed unemployment, to report it.

Nysdol Unemployment Twitter

James encourages victims of unemployment benefits fraud to report any incidents to their employer and the Department of Labor or the attorney general’s office. James’ press release can be accessed on the attorney general’s website.