New York State Lawful Absence Law

December 13, 2022

New York Governor Kathy Hochul recently signed an amendment to Section 215 of the New York Labor Law – known as the “lawful absence law” – which is set to go into effect on February 19, 2023. The law will prohibit employers from enforcing “no fault” attendance policies and from disciplining employees for taking legally protected time off from work.

The amendment defines a “no fault” attendance policy as being one that utilizes a “point,” “deduction,” or “occurrence” system to subject, or which could subject, an employee to disciplinary action for lawful absences. Such absences include those that are already statutorily protected by federal, state, and local law.

This includes absences relating to the federal Family and Medical Leave Act (FMLA), the New York State Paid Sick and Safe Leave Law, New York City’s Paid Safe and Sick Leave Law, voting leave, jury duty, bereavement leave, and other protected leave laws. To consider such absences under a no fault attendance policy will constitute retaliation under this new law. It is also important that attendance policies make clear that the employer will not penalize employees for use of protected leave.

Employers who violate the lawful absence law can be fined up to $10,000 for first-time violations and $20,000 for subsequent violations. In addition, the Labor Law creates a private cause of action for employees to bring suit against their employer for monetary damages, and provides that the New York Department of Labor may compel an employer to reinstate an employee terminated under such a policy and impose back payments.

To avoid penalty, employers with an existing “no fault” attendance policy should amend their policy to comply with the law.

If you have any questions about this new law or would like assistance modifying an attendance policy, please reach out to us.

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