New York Law Bans Penalties for Protected Absences

​New York recently passed a law that prohibits employers from penalizing workers for taking legally protected leave.

The law states that it's illegal retaliation if an employer disciplines workers by assessing points or deductions from a time bank when an employee uses any form of legally protected time off. It will take effect on Feb. 20, 2023.

"It is unique legislation that we haven't seen in other states," said Scott Allen, an attorney with Foley & Lardner in Milwaukee. "I wouldn't say it's a drastic change."

The law applies to any absences protected under local, state or federal law. It impacts no-fault attendance policies under which employers count a point against an employee who is absent, regardless of the reason for the absence. No-fault attendance policies tend to be more common in union settings and industries involving manufacturing and manual labor, Allen noted.

Employers can still have a policy that uses points to track attendance, Allen said, but legally protected absences can't be included. "The reason for each absence has to be considered," he said, so that protected leaves don't count against an employee.

It will take some adjustments from HR and managers if they've been used to docking workers for absences, regardless of the cause. "Employers must review their attendance or other absence control policies to ensure they are compliant with the law," recommended Melissa Camire, an attorney with Fisher Phillips in New York City. Managers, HR and anyone else involved in tracking employee attendance should be trained on this new law, she said.

It might take HR or managers extra time to deal with absences properly under the law. "With this new law comes an increased administrative burden to ensure employers are not assessing points for an absence protected by the law," Camire said. "This will involve questioning of employees regarding the reason for their absence, as well as confirming whether the employee qualifies for a protected absence."

Employers that violate the law could face strong penalties. "Employees have a private right of action for violations, and damages include monetary damages, such as back pay, liquidated damages and attorneys' fees," Camire explained. "Additionally, the New York Commissioner of Labor can bring an enforcement action. Civil penalties can be up to $10,000 [for the first violation] or $20,000 for repeat violations."

Employers cannot retaliate or discriminate against a worker for making a complaint about a violation of this law.

Types of Leave

New York mandates several types of leave, which are subject to the new law, including:

• Paid family and sick leave to bond with a new child, care for a family member with a serious health condition or assist loved ones when a family member is deployed abroad on active military service.
• Paid sick leave.
• Quarantine and COVID-19 leave. Large and midsize employers must provide paid leave for employees who are under mandatory quarantine due to a COVID-19 infection. Small employers must provide unpaid leave in that situation.
• Jury duty: Employers must provide workers unpaid time off when they are called to serve on a jury. If the employer has 10 or more employees, it has to pay the employee $40 per day for the first three days of jury duty.
• Voting leave: Employees are eligible for up to two hours of paid time off to vote if their work schedule does not allow sufficient time to vote.
• Domestic violence leave: Employers must allow time off for workers to seek medical attention for injuries caused by domestic violence or to obtain legal and other services related to domestic violence.
  

The federal Family and Medical Leave Act (FMLA) provides employees with up to 12 weeks of unpaid leave per year. They can use FMLA leave for their own serious health condition, after the birth or adoption of a child, or to care for a family member with a serious health condition. The FMLA also allows employees to take up to 26 weeks of unpaid leave per year to care for a spouse, child or parent who is a military service member, if that service member has a serious injury or illness.

Employers need adequate communication practices and tracking systems to distinguish between these different types of leave.