United States: New York Law To Clarify Employees Can't Be Punished For Lawful Absences

Private-sector employers with "no-fault" attendance policies in New York will need to revisit their policies following an impending change to New York Labor Law.

On November 21, 2022, New York Governor Kathy Hochul signed an amendment to the Labor Law which prohibits employers from issuing "points" against employees who are absent from work for any reason—including absences covered under local, state or federal law. Such absences would include employee leave under the federal Family Medical Leave Act, New York Paid Sick Leave, New York Paid Family Leave, New York Paid COVID-19 Leave, and New York Paid Vaccine Leave, to name a few.

The new law goes into effect February 19, 2023. The law amends Section 215, the Labor Law's general anti-retaliation provision.

Impact on No-Fault Attendance Policies

Under a no-fault attendance policy, employees absent from work are assessed "points," "demerits," or "occurrences" for taking leave, regardless of the reason for the absence. In turn, such policies trigger discipline against an employee if and when they accumulate enough points.

The new law seeks to curtail no-fault attendance policies in two respects.

First, the law expands the definition of a "protected activity" to include employees' legally protected absences pursuant to "federal, local, or state law." Second, the law states that issuing points or demerits against an employee may constitute a form of retaliation or discrimination: "assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action" may be considered unlawful under the new law.

Employers Should Review No-Fault Attendance Policies For Compliance

While job protections under existing employee leave laws such as the FMLA or N.Y. Paid Family Leave are not significantly altered, the new law squarely attacks point-based absence polices. Employers with "point" or "demerit" based absence policies should quickly review such policies for compliance with the new law, especially considering the law's prohibition on issuing points if points merely "could" trigger disciplinary action.

Accordingly, HR professionals and managers should be prepared to handle requests for time off in the coming months as the new law comes into effect early next year.

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