New York Employers May Not Penalize Employees For Lawful Absences

• Jurisdiction: New York,United States
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Subject Matter: Employment and HR, Employee Benefits & Compensation
• Author: Mr Peter Shapiro
• Published date: 05 January 2023

As is seemingly customary at this point, New York employers cannot ease into the New Year and must instead revisit their employee handbooks due to a recent amendment to the New York Labor Law that takes effect February 19, 2023.

The Lawful Absence Law amends Section 215 of the Labor Law to bar employers from disciplining employees who take legally protected time off from work. The protected employee conduct consists of the use of "any legally protected absence under federal, state or local law." That would include any statutory leave law such as approved absences under the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), New York Paid Sick Leave, the New York City Safe and Sick Leave Act, and various other laws protecting employees who miss time for COVID-19 reasons.

The statutory language is clear about the types of employer conduct that are prohibited: employers may not assess "any demerit, occurrence, or any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action." Employers should also tread carefully in making promotion, salary-increase, and bonus decisions that count any such lawful absences against their employees.

This amendment means that employers who have adopted no fault attendance policies need to revisit those policies as they can now give rise to liability unless carefully tailored to exclude any legally protected absences when assessing points. Note that because the law prohibits actions that "could" trigger disciplinary action, point or demerit policies predicated on attendance issues may be a...