HR Alert: Don’t Retaliate for Lawful Absences

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In November 2022, New York Governor Kathy Hochul signed a bill into law which amends New York Labor Law section 215. The new law goes into effect on February 18, 2023. The amendment provides that employers may not punish or discipline their employees for taking a lawful absence.

Prior to this amendment, the Labor Law prohibited employers from terminating, threatening, punishing, or engaging in any other discriminatory conduct against an employee that engaged in protected activity. Protected activities previously included complaining about a Labor Law violation to the employer or the New York State Department of Labor (DOL), complying with a DOL request, pursuing an action under the Labor Law, exercising a legal right, or being involved in an action that results in an adverse determination against the employer from the DOL. This amendment expands protected activity to any lawful absence that is protected by federal, state, or local law.

What’s a legally-protected absence?

The amendment doesn’t define what a legally-protected absence is, but it’s important to note the statute says “any legally protected absence pursuant to federal, local, or state law.” Given this language, it’s likely the law will be interpreted to include myriad types of leave. Some examples of protected State paid and unpaid leaves are New York Paid Sick Leave, New York Paid Family Leave, New York Paid COVID-19 Leave, and other specific leaves protected by New York law.

An example of an unpaid leave protected by federal law is the Family and Medical Leave Act (FMLA). Although employers allow time off to accommodate disability-related issues, nothing in the Americans with Disabilities Act or New York Human Rights Law explicitly provides for time off from work. However, it’s pretty likely that taking time off under these laws now will be covered by Labor Law section 215.

What do employers need to know?

As the new year begins and the law’s effective date looms, it’s a great time for employers to review their attendance policies to ensure compliance. The amendment to section 215 expands the definition of “to threaten, penalize, or in any other manner discriminate or retaliate against any employee” to include “assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action, which may include but not be limited to failure to receive a promotion or loss of pay.”

One big change is that the new law generally prohibits employers from using “no-fault” attendance policies. These types of policies allow employers to assign points for every absence, typically regardless of the reason. Once an employee receives a specified number of points, the employer can discipline her in accordance with the policy.

Under the new law, employers are prohibited from allotting points for an absence taken through a legally-protected leave program. Similarly, this amendment prohibits employers from deducting time from a bank of a time when they take an absence that is legally protected by federal, state, or local law. Last, an employer can’t refuse to promote or dock the pay of an employee in response to the employee’s taking a lawful absence. This means employers can’t implement disciplinary systems when an employee is legally absent or refuse to promote her because she previously took time off.

It’s worth noting that there already are laws that prohibit retaliation in response to employees taking time off. For example, under New York Labor Law § 196-b, an employer can’t discriminate or retaliate against an employee for requesting and using sick leave. The new law reinforces existing prohibitions and expands protections to any leave laws that don’t already prohibit this.

What happens if an employer makes a mistake?

An employee may bring a civil lawsuit under section 215 within two years of the event. Damages include enjoining the employer’s conduct, liquidated damages of up to $20,000, costs and reasonable attorneys’ fees, rehiring or reinstatement or an award of front pay in lieu of reinstatement, and an award of lost compensation and damages. Violation of section 215 is a class B misdemeanor.

This amendment goes into effect on February 18, 2023.

Now’s the time for employers to ensure they have a compliant attendance policy. We’re here to help at 716.839.9700.

Lisa Coppola

Written by Lisa Coppola

Founder of The Coppola Firm

Lisa A. Coppola, Esq. understands the challenges her clients face, whether they’re starting a new business, taking their existing operations in a new direction, or facing a claim or threat.

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