Last week, New York State enacted legislation that bans “no-fault” attendance policies. The new law, which will take effect in 90 days, prohibits employers from penalizing workers based on “use of any legally protected absence pursuant to federal, local, or state law,” and clarifies that assessing attendance points (or taking similar actions such as issuing demerits/occurrences or deducting from a time bank) constitutes retaliation under the law. (Lawmakers’ written justification for the law contends that no-fault attendance policies discourage workers from taking protected leave and fail to inform them of their rights.)
This development may come as a surprise to employers in industries where no-fault attendance policies are common, including in union settings. Such policies generally involve employees accruing “points” or “occurrences” when they are late or miss work, with certain exceptions for vacation, job-protected leave including under the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA), and other approved time off. Such policies are simple for employers to administer and also reduce burdens on workers by eliminating the need to obtain doctor’s notes and other documentation for absences.
We have previously discussed how no-fault attendance policies should deal with FMLA absences, as well as the extent to which absences due to COVID-19 may qualify as disability leave under the ADA that would warrant an exception to such policies. As a...
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