On November 21, 2022, New York State Governor Kathy Hochul signed into law Bill A8092B (the “lawful absence law”), which amends Section 215 of the New York Labor Law (NYLL), to prohibit employers from disciplining employees who take legally protected time off from work. The amendments to Section 215 of the NYLL expressly prohibit employers from “assessing any demerit, occurrence, or any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action” for the use of “any legally protected absence under federal, local, or state law.”1 In brief, employers cannot threaten, penalize, discipline, fire, or otherwise discriminate or retaliate against employees for their use of lawful absences. Additionally, employers cannot maintain “no fault” attendance policies and absence control procedures, which may penalize workers for their use of legally protected absences. The amendments to Section 215 of the NYLL take effect on February 19, 2023.
“No Fault” Attendance Policies and Absence Control Practices and Procedures
Many employers generally maintain and utilize “no fault” attendance policies and/or absence control practices and procedures to regulate and minimize employee absences and tardiness within the workplace. “No fault” attendance policies typically operate by penalizing workers for absences or tardiness through a points system. Points – also referred to as “demerits” or “occurrences” – are typically allocated to an employee’s record for taking time off from work, regardless of the reason for such absence. When an employee incurs points for each absence or lateness under these attendance policies, the employee may be disciplined, up to and including termination.
Some “no fault” attendance policies omit and/or include misleading information about statutorily protected absences afforded to workers. As a result of these broad absence control policies, procedures, and practices, employees might feel discouraged from exercising their right to use legally protected absences. Accordingly, the Legislature enacted the lawful absence law with the intent to curtail such “no fault” attendance policies by making it clear that workers shall not be punished or subjected to discipline for lawful absences.
What Constitutes a Legally Protected Absence?
The amendments to NYLL Section 215 add to the definition of protected activity under the existing statute to include an employee who uses any legally protected absence pursuant to federal, local, or state law. Notably, the amendment does not provide a definition as to what constitutes a “legally protected absence pursuant to federal, local, or state law.” Thus, this language should be broadly interpreted to include all New York State, New York City, and federal statutory leave laws. Absences that will likely be covered by this law include, but are not limited to, New York Paid Family Leave, New York Paid Sick Leave, New York Vaccine Leave, New York Paid COVID-19 Leave, New York City Safe and Sick Leave, the Family and Medical Leave Act, the Americans with Disabilities Act, Worker’s Compensation, and other various leaves, such as jury duty leave, voting leave, domestic violence leave, and military leave.
Violations of Section 215 of the NYLL
NYLL Section 215 provides a private cause of action for current and former employees to initiate a lawsuit to recover monetary damages from employers that violate their rights under Section 215. Furthermore, employers that violate Section 215 may be required by the New York State Department of Labor (NYSDOL) to provide reinstatement and pay individuals for damages associated with violations of Section 215, including liquidated damages, back pay and front pay. The NYSDOL can also issue up to $10,000 in civil penalties to first-time violators of Section 215 and up to $20,000 for all subsequent violations.
Guidance for Employers
With the end of the year and effective date of the lawful absence law fast approaching, employers should take the time now to consult with their legal counsel regarding the methods by which any existing “no fault” attendance policies and/or absence control practices might need to be modified to comply with the lawful absence law. Employers may wish to consider the following steps:
Updating all leave policies that run afoul of the amended law;
Communicating the updated policies to all employees; and
Training supervisors, managers, and Human Resources personnel on the lawful absence law.
Littler will continue to monitor developments regarding the implementation of the lawful absence law, including its impact on the workplace.
Lisa Smith, SPHR, SCP
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