Private-sector employers with “no-fault” attendance policies in New York will need to revisit their policies following an impending change to New York Labor Law.
On November 21, 2022, New York Governor Kathy Hochul signed an amendment to the Labor Law which prohibits employers from issuing “points” against employees who are absent from work for any reason—including absences covered under local, state or federal law. Such absences would include employee leave under the federal Family Medical Leave Act, New York Paid Sick Leave, New York Paid Family Leave, New York Paid COVID-19 Leave, and New York Paid Vaccine Leave, to name a few.
The new law goes into effect February 19, 2023. The law amends Section 215, the Labor Law’s general anti-retaliation provision.
Under a no-fault attendance policy, employees absent from work are assessed “points,” “demerits,” or “occurrences” for taking leave, regardless of the reason for the absence. In turn, such policies trigger discipline against an employee if and when they accumulate enough points.
The new law seeks to curtail no-fault attendance policies in two respects.
First, the law expands the definition of a “protected activity” to include employees’ legally protected absences pursuant to “federal, local, or state law.” Second, the law states that issuing points or demerits against an employee may constitute a form of retaliation or discrimination: “assessing any demerit, occurrence, any other...
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