A New Protected Activity for New York Employees: “Lawful Absences”

The 2023 President’s Day weekend will bring a significant change affecting almost all employers in New York State.

Governor Kathy Hochul signed Assembly Bill A8092B (“the bill”) into law on November 21, 2022, approving amendments to the New York Labor Law that will take effect on February 19, 2023. These new provisions (“the amendments”) will prohibit employers from penalizing employees who take absences from work that are “legally protected” by federal, state, or local law. This means that New York employers will need to take extra care in handling employee attendance issues, particularly if they have traditionally maintained “no fault” policies designed to limit worker absences.

What the New Law Says

The bill modifies Section 215 of the New York Labor Law, which lists a variety of protected whistleblower activities, by expanding the reasons for which an employer may not discharge, threaten, penalize, or in any manner discriminate or retaliate against an employee. Upon taking effect, the law will also cover employees who use “any legally protected absence pursuant to federal, local, or state law.” Moreover, the amendments provide new details as to what can constitute a prohibited threat, penalty, discrimination, or retaliation: the statute lists “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” as employer activity that constitutes unlawful behavior. The amendments also state that the term “disciplinary action” includes, but is not limited to, loss of pay or an employee’s failure to receive a promotion, notwithstanding the fact that several kinds of legally protected absences may be unpaid.

The Law Covers Many Types of Absences

The bill’s language is concise, but its implications are broad, particularly since the bill does not explicitly define what is required for an absence to qualify as “legally protected.” Accordingly, employers should be aware of the myriad types of absences that will potentially be protected. For example, under federal law, any employer with 50 or more employees is subject to the Family and Medical Leave Act (FMLA), and employee absences that are FMLA-qualifying would be covered by these amendments. Likewise, the Americans with Disabilities Act, which covers all U.S. employers with 15 or more employees, may protect certain absences as well.

New York State also has numerous laws under which a worker may be entitled to leave, whether paid or unpaid:

• Paid Family Leave
• Paid Sick Leave
• COVID-19 Sick Leave
• COVID-19 Vaccine Leave
• Adoption Leave
• Lactation Accommodation

While state laws mandating workers’ compensation and short-term disability benefits do not themselves provide a leave entitlement, periods during which an employee is receiving such benefits may be protected under applicable leave laws.

New York State also requires all employers to:

• permit employees who are victims of a crime or who are subpoenaed as witnesses in criminal proceedings to take unpaid leave to attend court, consult with a district attorney, or exercise other rights under the law;
• grant employees time off for jury duty;
• provide eligible employees up to two hours of paid time off to vote; and
• allow eligible volunteer firefighters and ambulance service workers time off to respond to a state of emergency.

In addition, New York employers with 20 or more employees at at least one site must:

• provide eligible employees time off for bone marrow and blood donations, and
• allow up to 10 days of unpaid military spousal leave for eligible employees.

Finally, several localities across New York State, especially New York City, provide additional leave entitlements, such as those available under the New York City Earned Safe and Sick Time Act, the New York City Temporary Schedule Change Law, and Westchester County’s Safe Time Leave Law.

Even this long list is not necessarily comprehensive. Given the possibility of local ordinances, the ever-evolving nature of sick leave laws, and other factors, employers should be cautious in how they seek to address employee attendance concerns.

Employer Policy Implications

Absence control practices, such as “no fault” attendance policies that dock points from or add demerits or occurrences to employee records for tardiness and absences, are not uncommon and are often the basis for progressive discipline of employees. Some employers’ policies are broadly written and may, in practice, discourage workers from using leave, even if they are legally entitled to do so. New York employers will now need to reassess their practices and review their written policies to ensure compliance with the new law. Policies that provide or even imply that workers may be penalized for using protected leave to take time off from work should be modified to clarify that lawful absences will not result in disciplinary action. Thanks to stiff penalties and plaintiff-friendly remedies, employers will want to avoid the possibility of inviting legal action, either from current or former employees or from the New York State Department of Labor, which is empowered to investigate potential violations and enforce the law.

Enforcement Risks

While the bill does not change anything with respect to the statute’s enforcement provisions, employers should take note that New York Labor Law § 215(1)(b) already includes civil penalties that range from $1,000 to $10,000, which can reach $20,000 for a second offense within six years. The Commissioner of Labor is also authorized to order payment of liquidated damages of up to $20,000 to aggrieved employees, as well as reinstatement, restitution, front pay, and other remedies. Furthermore, § 215(2) establishes a private right of action for employees, providing for equitable and monetary relief including liquidated damages, costs, and attorneys’ fees. The provision expressly permits legal action with or without an administrative remedy, and also provides that liquidated damages may be awarded to every employee aggrieved by a violation of the statute, making the law ripe for class action litigation.

What New York Employers Should Do Now

Since the law takes effect early next year, all New York employers should take proactive steps now to ensure timely compliance:

• Review absence control practices and all written attendance policies, especially any that resemble “no fault” policies or a demerit system that penalizes absenteeism without regard to the reason for any absence.
• Modify existing practices and policies regarding employee absences to make clear that employees will not be subjected to discipline for lawful absences and communicate such changes to employees.
• Train human resources personnel, supervisors, and managers regarding the changes to the law and any modifications to existing policies and practices.

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For more information about this Insight, please contact:

Corey P. Argust New York 212-351-4942 cargust@ebglaw.com

Genevieve M. Murphy-Bradacs New York 212-351-4948  gmurphybradacs@ebglaw.com

Naomi C. Friedman, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this Insight.