United States: New York City Fair Workweek Law Amended

Last Updated: July 24 2018
Article by Kimberley E. Lunetta

Employers in New York City must now allow employees to make temporary schedule changes for up to two business days a year for "personal events," effective July 18. While additional guidance is anticipated, employers should familiarize themselves with the law and amend any applicable policies for compliance.

On July 18, a new law (Int. 1399-A) went into effect in New York City, amending the NYC Fair Workweek Law to require that employers allow employees to make temporary changes to their work schedules for up to two business days a year for "personal events." The NYC Department of Consumer Affairs, in charge of the law's administration, has indicated that it will release additional guidance and publications on the law. This additional guidance may clarify some details that are still undetermined (such as what certification an employer may require), but what is currently known about the law is described below.

Which employers are covered?

All employers are covered, but the law contains a carve-out provision for those employers in the entertainment industry "whose primary business is the development, creation, or distribution of theatrical motion pictures, televised motion pictures, television programs or live entertainment presentations" unless the employee in question is (1) one whose primary duty is "office or non-manual work directly related to the management or general business operations of the employer or the employer's customers" (administrative exempt) or (2) one whose primary duty is performing "routine mental, manual, mechanical or physical work in connection with the care or maintenance of an existing building or location used by the employer."

Which employees are covered?

Employees must work at least 80 hours in NYC in a calendar year and have been employed by the employer for 120 days or more. Employees who are covered by a valid collective bargaining agreement that waives the provisions of the bill and otherwise addresses temporary changes to work schedules are also exempt from coverage.

What are eligible "personal events"?

Eligible reasons for making temporary changes to schedules are

  • to provide care to a minor child or to a family or household member with a disability who requires medical care or assistance with the needs of daily living;
  • to attend proceedings to secure subsistence benefits for the employee or a family member; or
  • for any of the reasons allowed under the revised NYC Earned Safe and Sick Time Act (ESSTA), which are
    • the employee's mental or physical illness, injury, or health condition;
    • the employee's need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition;
    • the employee's need for preventive medical care;
    • the employee's elective surgery, including organ donations;
    • care of a family member who needs medical diagnosis, care, or treatment of an illness, injury, or health condition, or who needs preventive medical care;
    • care of a family member who has elective surgery, including organ donations;
    • closure of the employee's workplace due to a public health emergency (as declared by the relevant authority);
    • the employee's need to care for a child whose school or childcare provider is closed due to a public health emergency; and
    • where an employee or a family member was the victim of any act or threat of domestic violence, unwanted sexual physical contact, stalking, or human trafficking, the employee or a family member's need to take actions necessary to restore the physical, psychological, or economic health or safety of the employee or family member, or to protect those who associate or work with the employee.

What is the required process?

  1. Initial request: The employee is supposed to notify the employer of his or her request for a temporary schedule change as soon as the employee becomes aware of the need for the change. This initial request does not need to be in writing.
  2. Employer response to initial request: The employer must respond immediately (at least verbally), but the response does not need to be in writing unless the employee's request was in writing.
  3. Place the request in writing: While the employee's initial request does not need to be in writing, it must be placed in writing before the schedule change occurs, if possible, or within two days after returning to work. The request must include the proposal for a schedule change unless the employee is seeking leave without pay.

Once the employee submits his or her written proposal, the employer has 14 days to respond, either granting the request or explaining why it was denied (the request can only be denied if the employee is not covered by the law, or if the employee has exhausted his or her two business days in the calendar year). The response must also inform the employee of the number of schedule changes he or she is entitled to for the remainder of the calendar year.

What "schedule changes" are permitted?

A "temporary schedule change" is defined as "a limited alteration in the hours or times that or locations where an employee is expected to work, including, but not limited to, using paid time off, working remotely, swapping or shifting work hours and using short-term unpaid leave."

How does this law interact with NY ESSTA?

The two required schedule changes are in addition to the five paid sick days granted under NY ESSTA, so that an employer who has granted paid leave under ESSTA does not satisfy the two-business-day requirement under the new law, and an employee who has requested a temporary schedule change need not exhaust his or her paid sick leave under ESSTA before requesting the change.

What does this mean for employers?

Employers should amend any applicable leave and paid-time-off (PTO) policies to ensure compliance with the law, and provide current employees and new hires with notice of the change and information about their entitlement. Employee handbooks, new-hire packets, and other documents should be revised to reflect the new policies.

Employers should also ensure that managers and supervisors are apprised of the new policies and their obligations under the new law. Those in charge of tracking leave and PTO usage (e.g., HR departments, payroll departments, or third-party vendors) should be educated on the interaction of temporary schedule changes under this new law with other leaves provided by the employer and required by federal and local law, and know how to make necessary changes in tracking software or other systems used to manage and monitor leave.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

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