New York Amends Labor Law to Prohibit "No Fault" Attendance Policies that Penalize Employees for Taking Lawful Absences

On November 21, 2022, New York State Governor Kathy Hochul signed an amendment to the New York Labor Law which clarifies that workers shall not be punished for taking lawful absences. Specifically, the amendment prohibits employers from "assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time," for a legally protected absence "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." The purpose of the amendment is to make clear that employers who utilize "no fault" attendance policies, whereby workers are assessed points or deductions from a timebank for absences, may subject themselves to retaliation claims where workers are subject to discipline for taking any legally protected absence.

"No fault" attendance policies are utilized by employers to moderate and limit excessive absenteeism and tardiness in the workplace. These policies, sometimes also referred to as “absence control” policies, operate by penalizing workers with excessive absenteeism or tardiness through a point system. Often, points (or "demerits" or "occurrences") are placed on a worker’s record regardless of the reason for the absence or tardiness. Under this amendment, adding points for a "legally protected absence pursuant to federal, local, or state law" violates the law if a worker is subject or could be subject to discipline under the policy.

The amendment shall take effect on February 19, 2023. Accordingly, New York employers should review their leave and attendance policies now to ensure they comply with the new amendment and train their managers on how to implement absenteeism policies in light of the amendment. Employers that utilize a no fault attendance policy should confer with legal counsel to determine whether and how to modify their policies to comply with the amendment. If you have any questions about your company's compliance, please contact a member of the DWT Employment Services Group.