The New York Labor Law has been amended to clarify that workers may not be punished or disciplined for taking legally protected absences. Under Section 215 of the Labor Law, employers are prohibited from retaliating against workers for enumerated reasons, including instituting certain legal complaints against the employer and participating in investigations. Earlier this month, that Section was amended in two ways:
• First, the law was amended to enumerate an additional protected activity: workers’ use of “any legally protected absence pursuant to federal, local, or state law.”
• Second, the law was amended to clarify that prohibited retaliation includes “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.”
The changes will take effect on February 20, 2023.
The law does not define the scope of “legally protected absence,” and could therefore be interpreted to include numerous types of paid and unpaid leave at the city, state, and federal levels. Examples include absences defined by New York City’s Paid Safe and Sick Leave Law, New York’s Paid Family Leave Law, and the federal Family and Medical Leave Act, to name a few. Employers should ensure they are familiar with all of the specific types of leave protected in New York, such as military spouse leave, bone marrow and blood donation leave, voting leave, and others.
Employers who have “no fault” attendance policies should pay special attention to these amendments. Under “no fault” attendance policies, employees are assessed points (or “demerits” or “occurrences”) for each absence regardless of the reason for the absence. Absences deemed excessive can lead to discipline and even termination. According to the Sponsor Memo accompanying the bill, these policies often fail to make clear that employees will not receive points for disability-related absences, FMLA-qualifying absences, and sick days. The Sponsor Memo emphasizes the need to make “explicitly clear that workers shall not be punished or subjected to discipline for lawful absences.”
New York employers, especially those with “no fault” attendance policies, should contact their regular Saul Ewing attorney to ensure their employee manuals and attendance policies are consistent with the amendment.
