New York Bill Would Curtail No-Fault Attendance Policies



​A bill that recently passed the New York State Legislature would clarify that businesses with no-fault attendance policies cannot discipline or punish employees who take time off that is legally protected under federal, state or local law.

For example, the federal Family and Medical Leave Act (FMLA), the federal Americans with Disabilities Act, and New York state and New York City paid-sick-leave laws guarantee time off without punishment, so it would be illegal to assess a demerit, deduction from a timebank or disciplinary action for taking legally protected time off.

The new bill would prohibit employers from firing, threatening, penalizing, discriminating or retaliating against employees because they made a complaint to the employer or state authorities that the employer violated the law.

The bill hasn't been signed by the governor yet.

"It was expected that Gov. Kathy Hochul would sign the bill into law, although it has been pending for nearly three months now," said Theresa D'Andrea, an attorney with Fisher Phillips in New York City. "The bill would take effect 90 days after Gov. Hochul signs it into law."

"The bill passed through each legislative chamber with essentially unanimous support," said Matthew Rosenthal, an attorney with Proskauer in New York City. "Also, the governor has shown a willingness to sign into law other pieces of legislation aimed at strengthening workplace protections. Thus, this bill is likely to be signed into law."

No-fault attendance policies would still be allowed, just within certain guidelines.

How They Work

No-fault attendance policies—also called no-fault absence policies—operate by placing points on an employee's record for each absence, regardless of the reason for it. The points accrue over a period of time, and employees might be disciplined or fired if they reach a certain number of points. Specific point totals and the consequences may vary for each employer.

This type of policy doesn't differentiate between something like jury duty, which New York employers are required to provide unpaid time off for, and accrued vacation days, which are not mandated by law.

If the New York bill becomes law, "employers should immediately revisit their employee handbooks to ensure that their no-fault absence policy complies with New York law by stating that demerits, points or deductions will not be applied to employees who take a legally protected absence under federal, state or local law," D'Andrea advised. "Employers should also reiterate that employees should feel comfortable raising questions or concerns regarding the no-fault absence policy without fear of retaliation."

"Such policies should not treat all absences equally," Rosenthal said. "Employers with no-fault absence policies should train their management-level and HR personnel to know when absences are legally protected, so they can identify the types of absences that should not be penalized."

If an employee with a disability needs unpaid leave as a reasonable accommodation, the employer must modify its no-fault attendance policy to provide the employee with the additional leave, according to guidance from the U.S. Equal Employment Opportunity Commission. There's an exception if the business can show that there is another effective accommodation that would enable the person to perform their essential job functions, or that granting leave would cause an undue hardship to business operations.

If the New York bill becomes law, the consequences for noncompliance could be costly for employers. "The New York State Department of Labor can assess civil penalties, order rehiring or reinstatement of a discharged employee to their former or an equivalent position, and/or award back pay or front pay, along with liquidated damages," D'Andrea said. "The employee may bring a private civil action in court seeking similar remedies."

Managing Leave

Absence management is a constant undertaking, as well as a legal challenge for HR departments. In 2017, the U.S. Department of Labor (DOL) estimated that almost 3 percent of an employer's workforce was absent on any given day. Many of the employers that maintain a no-fault attendance policy are in time-sensitive industries that require almost round-the-clock operations, such as food production, transportation and health care.

It's important to make sure your absence policy is clearly written and easy to understand.

A Better Balance, a nonprofit advocacy organization based in New York City, reviewed no-fault attendance policies from 66 large employers and found that 80 percent of them failed to make clear that employees would not receive points for disability-related absences. Some of those policies contained inaccurate information about the FMLA, such as falsely implying that FMLA leave must be approved in advance, the organization reported.  

Poorly written or misleading policies might discourage workers from taking time off when they are sick or need to care for a sick child.