Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
New York Governor Kathy Hochul announced on November 1, 2021 that she signed legislation expanding the definition of “family member” under the New York Paid Family Leave Act to include “siblings,” effective January 1, 2023. Separately, on October 12, 2021, the New York State Department of Labor updated its guidance regarding paid leave time for COVID-19 vaccinations to address the applicability of the Paid Vaccination Leave Law to COVID-19 booster shots.
Definition of “Family Member”
The Act provides certain employees with—among other types of leave—job-protected, paid leave to care for a “family member” with a serious health condition. The law previously defined “family members” to include employees’ spouses; domestic partners (including same and differently gendered couples); children and step-children; anyone else recognized to be in the legal custody of the employee; parents and step-parents; parents-in-law; grandparents; grandchildren; and anyone to whom the employee stands in loco parentis (typically meaning that the employee provides parent-like day-to-day care and financial support even if they are not legally or biologically related to the individual). Currently, under New York’s paid leave law, eligible workers can take up to 12 weeks of leave at 67% of their pay, up to a state-mandated cap that changes yearly, to care for such family members.
While the in loco parentis coverage may plausibly address some caregiving situations involving siblings, the new legislation squarely adds biological siblings, adopted siblings, half-siblings, and stepsiblings to the list of “family members” who may be cared for through paid family leave beginning in 2023. This differs from the definition of covered “family members” with a serious health condition who may generally be cared for under the federal Family and Medical Leave Act, which does not explicitly include “siblings.”1
This amendment follows the recent amendment to New York Paid Family Leave Regulations taking effect on January 1, 2022 that changes the manner intermittent paid family leave is calculated. That earlier amendment removed the 60-day cap on intermittent leave, recognizing that persons working more than five days a week are not able to take 12 weeks of intermittent leave with the previously-imposed 60-day cap. Under the amendment’s change, intermittent leave benefits will be calculated by multiplying the average number of days per week that the employee works by 12 weeks (so, for instance, an employee who works six days per week may receive up to 84 days of intermittent leave).
Paid COVID-19 Vaccination Booster Leave
The New York State Department of Labor’s update to the Frequently Asked Questions portion of the state guidance now makes it clear that employees, in addition to being entitled to up to four hours of paid leave for each immunization shot of the initial vaccination series, may also receive up to four hours of paid leave for each vaccine booster shot:
Q: DOES THIS LAW APPLY TO COVID-19 BOOSTER SHOTS?
Yes. Labor Law §196-c applies to any COVID-19 vaccination received by an employee, including booster shots.
At the time the Paid Vaccination Leave Law—Labor Law § 196-c—was passed and the guidance was issued by the NY Department of Labor, COVID-19 booster shots were seemingly not considered necessary. Previously, the state guidance had contemplated that employees may have their total paid leave for vaccinations capped at eight hours (if undertaking a two-dose vaccination series), with up to four hours of employer-paid leave available per immunization shot. However, the statute itself indicates that four hours of leave is available “per vaccine injection,” and the updated guidance clarifies that this includes booster shots.
The Paid Vaccination Leave Law is set to expire on December 31, 2022.
New York employers should consider updating their paid family leave policies to reflect the forthcoming expanded coverage of siblings under the law’s caregiving leave rights, as well as updating paid vaccine leave policies and protocols to address the availability of the leave for booster shots. As the guidance regarding New York’s leave laws is revised frequently, employers should also stay apprised of new developments in New York’s leave entitlements and contact experienced employment counsel with questions regarding the interpretation of these developments.
1 See 29 C.F.R. §§ 825.112, which in pertinent part says , “Employers covered by FMLA are required to grant leave to eligible employees…[t]o care for the employee's spouse, son, daughter, or parent with a serious health condition.”