A bill recently passed by the New York State Legislature would clarify that companies with no-fault attendance policies cannot discipline or punish employees who take leave legally protected by federal, state or local laws. .
For example, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act, and the paid sick leave laws of New York State and New York City guarantee sick leave without penalty, it would therefore be illegal to assess a demerit, time bank deduction or disciplinary action for taking legally protected leave.
The new bill would prohibit employers from dismissing, threatening, penalizing, discriminating or retaliating against employees because they have filed a complaint with the employer or state authorities that the employer violated the law.
The bill has yet to be signed by the governor.
“Governor Kathy Hochul was expected to sign the bill, although it has been pending for almost three months now,” said Theresa D’Andrea, an attorney at Fisher Phillips in New York. “The bill would take effect 90 days after Governor Hochul signs it.”
“The bill passed each legislative chamber with essentially unanimous support,” said Matthew Rosenthal, an attorney with Proskauer in New York. “Additionally, the governor has shown a willingness to enact other pieces of legislation to strengthen protections in the workplace. As such, this bill is likely to become law.”
No-fault attendance policies would still be permitted, within certain limits.
how they work
No-fault attendance policies, also known as no-fault absence policies, work by placing points on an employee’s record for every absence, regardless of the reason. Points accumulate over a period of time and employees can be sanctioned or terminated if they reach a certain number of points. Specific point totals and consequences may vary with each employer.
This type of policy does not distinguish between something like jury duty, for which New York employers are required to provide unpaid time off; and accrued vacation days, which are not required by law.
If the New York bill becomes law, “employers should immediately review their employee handbooks to ensure that their no-fault absence policy complies with New York law by stating that demerits, points or deductions will not be applied to employees who take a legally protected absence under federal, state or local law,” D’Andrea advised. “Employers should also reiterate that employees should feel comfortable raise questions or concerns about the No-Fault No-Fault Policy without fear of retaliation.”
“Such policies should not treat all absences equally,” Rosenthal said. “Employers with no-fault absence policies should train their management and human resources staff to know when absences are legally protected, so they can identify the types of absences that should not be penalized.”
If an employee with a disability requires unpaid leave as a reasonable accommodation, the employer must modify its no-fault attendance policy to grant the employee the additional leave, in accordance with US Equal Employment Opportunity guidelines. Commission. There is an exception if the company can demonstrate that there is an effective alternative accommodation that would allow the person to perform their essential job functions, or that granting a leave of absence would cause an undue hardship on the company’s activities. company.
If the New York bill becomes law, the consequences for non-compliance could be costly for employers. “The New York State Department of Labor may impose civil penalties, order the rehiring or reinstatement of a terminated employee to their former or equivalent position, and/or award back pay or salary initial, as well as liquidated damages,” D’Andrea said. “The employee may bring a private civil action in court for similar remedies.”
Absence management is an ongoing business, as well as a legal challenge for HR departments. In 2017, the US Department of Labor (DOL) estimated that nearly 3% of an employer’s workforce was absent on any given day. Many of the employers who maintain a no-fail attendance policy work in time-sensitive industries that require nearly round-the-clock operations, such as food production, transportation, and healthcare.
It is important to ensure that your absence policy is clearly written and easy to understand.
A Better Balance, a New York-based nonprofit advocacy organization, reviewed the no-fault attendance policies of 66 major employers and found that 80% failed to specify that employees would not receive points for disability-related absences. Some of those policies contained inaccurate information about the FMLA, such as incorrectly implying that FMLA leave must be approved in advance, the organization reported.
Poorly written or misleading policies can deter workers from taking time off when they are sick or caring for a sick child.