Follow us on LinkedIn to see future News.
February 21, 2023
New York State’s Lawful Absence Law became effective on February 20, 2023. The law amends New York Labor Law to prohibit employers from threatening, penalizing, discriminating, or retaliating against employees who take absences protected under federal, state, or local law. Although the law does not expressly reference any specific federal, local, or state law, it presumably protects time off covered by, for example, the New York Paid Family Leave Law, the New York Paid Sick Leave Law, the New York Emergency COVID-19 Paid Sick Leave Law, the New York Paid Leave for COVID-19 Vaccinations Law, and the New York City Safe and Sick Leave Law, as well as the Family and Medical Leave Act and Americans with Disabilities Act. This protection extends to absences related to sickness, disability, pregnancy, and caregiving obligations, as well as domestic violence leave, jury duty leave, voting leave, and blood donor leave.
One of the biggest impacts of the amendment is its curtailment of so-called “no-fault” employee attendance policies. In general, no-fault policies (also referred to as absence control policies) are often used to curb employee absenteeism and rely on a system whereby an employee incurs points or demerits for each absence, regardless of the reason for the absence. Accumulating a certain number of points typically results in disciplinary action, up to and including termination. Pursuant to New York’s new law, however, employers are no longer permitted to assign or deduct points under a no-fault or absence control policy for an employee’s use of legally protected absences. Notably, the law does not bar employers entirely from using points-based policies to track employee attendance. Rather, employers must distinguish the reason behind each absence to ensure that legally protected absences are not counted against an employee under such policies.
Moreover, employers cannot retaliate or discriminate against an employee for making a complaint about an employer’s violation of the law, including, for example, by dismissing the employee, reducing hours or pay, or taking other disciplinary measures.
Violations can result in substantial penalties for employers. The law provides current and former employees with a private right of action to recover back pay, front pay, monetary damages, liquidated damages, reinstatement, and attorney’s fees from employers that violate their rights. In addition, an employee can file an administrative complaint with the New York State Department of Labor (NYDOL), which has regulatory authority to award similar remedies. The NYDOL also can issue civil penalties of up to $10,000 for an initial violation, and up to $20,000 for subsequent violations.
Employers should consult with legal counsel to review and update their existing attendance policies and ensure compliance with the Lawful Absence Law.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
