The New York bill amends Section 215 of the New York Labor Law to prohibit employers from “evaluating any demerit, event, other point or deduction from an allotted time bank which subjects or could subject an employee to disciplinary action” based on the use of “any legally protected absence under federal, local or state law.” The law also prohibits employers from terminating, threatening, discriminating or retaliating against employees for their use of statutory absences.
“No-fault” attendance policies are a system where employees accrue points for absences or tardiness and face discipline or termination should they rack up too many points. Often, they are accompanied by a reward system where points are deducted for good attendance.
Implications. The New York law simply codifies what HR departments should already be doing, says Eric H. Rumbaugh, an employment attorney and partner with Michael Best and Friedrich LLP. “This law serves as a good reminder for companies and contingent workforce program managers to review their policies to ensure they are in compliance with applicable laws.”
Workers will have absences, Rumbaugh explains, but if those absences are for a protected reason, “neither you nor your staffing firm can penalize them.”
However, New York’s law goes further than the existing protections by declaring that the mere issuance of attendance points (or equivalents) for protected absences constitutes retaliation, even when those points do not result in discipline or termination, writes Scott T. Allen, an attorney with Foley & Lardner. Accordingly, New York employers must consider exceptions for any and all absences that result in attendance points to workers and not only when they receive formal discipline as a result.
New York’s law goes into effect Feb. 19, 2023.