Governor Hochul Signs NY Lawful Absence Law
On November 21, 2022, Governor Hochul signed a bill amending Section 215 of the New York Labor Law, expanding employee protections by prohibiting discrimination, retaliation, and other adverse employment actions on the basis of an employee’s use of a legally protected absence pursuant to federal, state, or local law.
While the amended law does not define a “legally protected absence” beyond the qualification that the absence is pursuant to federal, state, or local law, such absences include but are not limited to leave taken pursuant to the federal Family and Medical Leave Act, New York State Paid Sick Leave, New York State Paid Family Leave, and New York City Paid Safe and Sick Leave Law, as well as other, perhaps lesser known, leave entitlements under state law, such as blood donation or military spouse leave. While many existing leave laws such as the FMLA or NY Paid Family Leave already contain anti-discrimination and anti-retaliation provisions, this new state protection applies to all leaves pursuant to federal, state and local law.
Notably, the amendments also target no-fault or points-based attendance control policies. Under these types of policies, an employer assigns points or marks to an employee for absences or lateness, and employees who accrue enough points are subject to discipline. The amendment adds a provision expressly prohibiting employers from “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, which may include but not be limited to failure to receive a promotion or loss of pay.” This provision makes it illegal for employers to consider an employee’s use of legally protected leave as a mark against the employee which could later be used as a basis for discipline or otherwise negatively affecting the employee’s terms and conditions of employment.
Employers should be mindful that any attendance policies must comply with the new law. It remains to be seen what implications, if any, the new law will have for employers’ attendance policies that exceed legally required leave allowances, or for employers with leave policies that do not distinguish between sick leave and other forms of leave. The legislative history of the law also references workers’ rights to take leave to address religious needs, which are typically based on reasonable accommodations, not leave of absence laws. Considering this, it is possible the new law will be read more expansively to protect leave taken under other laws, even ones that are not purely focused on workers’ leave.
The amendment will become effective on February 19, 2023. Before then, employers are encouraged to review their existing policies and procedures for compliance, as the consequences for violations can be costly. The law provides a private cause of action for current and former employees to recover monetary damages for violations of the Labor Law. Additionally, employers may be subject to civil penalties from the NYS Department of Labor for violations. For first time violations, the penalty can be as high as $10,000; and, if the employer is found to have violated the Labor Law in the previous six years, fines can be increased up to $20,000 per violation.
If you have any questions about the new law or need assistance amending your employment documents such as leave policies, attendance policies, or handbooks, please contact Kate Townley at ktownley@fglawllc.com or any other attorney at the Firm.
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