Labor and Employment Law: Updates to New York State Leave Protections
The New York Labor Law has been amended to provide protection for certain employee absences. The new law takes effect on February 20, 2023. The law aims to prohibit employers from penalizing employees who take legally-protected absences, including those defined by federal, local, or state employment law, and forbids “no-fault” attendance policies. The stated purpose of the amendment to Section 215.1(a) of the Labor Law is “[t]o ensure that it shall be retaliation for an employer to discipline workers by assessing points or deductions from a timebank when an employee has used any legally protected absence.”
Protected absences now include days off taken in accordance with federal and New York State leave laws. Employers may not discharge, threaten, penalize, or retaliate against employees for taking protected absences.
“No-fault,” points-based attendance policies that punish employees and impose consequences on employees for taking protected absences are restricted under this law. This includes disciplinary actions that may be taken once an employee reaches a certain number of absences. Employers cannot now deduct points or take away pay or promotions from employees for taking a protected leave.
This amendment to the NY Labor Law also provides a legal avenue for claims against employers who retaliate against employees for taking protected leave. There may be a private cause of action that allows employees to seek back pay, front pay, reinstatement, and/or liquidated damages when experiencing retaliation related to protected leaves.
Companies should review their policies to ensure compliance with the amended law. Practices that penalize protected absences should be identified and revised. Organizations that formerly used no-fault attendance policies will need to train managers and HR personnel on updated procedures.
The new law covers many types of legally protected absences, including, inter alia, leave under the Family and Medical Leave Act, which provides certain eligible employees with up to 12 weeks of unpaid leave per year for specific family and medical reasons; the New York State Paid Family Leave Law, which provides certain eligible employees with up to 12 weeks of job-protected paid time off to bond with a new child, care for a family member with a serious health condition, or help relieve family pressures when someone is called to active military service; the New York State and City Paid Sick Leave Law, which provides eligible employees with paid sick leave for personal and family health needs; as well as other legally-protected absences such as time off for military service, jury duty, and voting.
These amendments to the New York Labor Law reinforce legally protected absences, and employers are encouraged to review current practices and retrain managers and HR personnel if necessary. The extent to which this New York Labor Law amendment may be preempted by federal laws such as FMLA is an issue which may be litigated in both federal and state courts.
Companies that fail to comply with the new law are at risk of incurring fines of up to $10,000 for initial violations and up to $20,000 for subsequent violations. It is important for companies to stay compliant with the law to avoid potential legal and financial consequences. To learn about Bleakley Platt & Schmidt’s Labor & Employment Law Practice Group, click here, or contact Joseph DeGiuseppe at (914) 287-6144 or jdegiuseppe@bpslaw.com to get started.