Starting February 19, 2023, employers will not be able to discipline employees for certain types of absences. Section 215 of the New York Labor Law (NYLL) was amended to prohibit employers from taking adverse action against employees for “any legally protected absence under federal, local, or state law,” including “assessing any demerit, occurrence, or any other point, or deductions from an allotted bank of time, which subjects or could subject an employee to disciplinary action.” Section 215 currently prohibits retaliation against employees who engage in a variety of protected activity, including making complaints about the employer’s violation of any of the provisions of the New York Labor Law, notably including an employer’s pay practices.
Although many of the laws that provide leaves of absence (e.g., the federal Family and Medical Leave Act (FMLA), the New York Paid Family Leave Benefits Law, the New York State and New York City paid sick leave laws, New York Vaccine Leave, New York Paid COVID-19 Leave, and military leave laws) contain their own non-retaliation provisions, the amendment to Section 215 will protect employees against adverse action for taking leave under those laws, as well as pursuant to such laws as jury duty leave, voting leave, donor leave, domestic violence leave and others.
In addition, under “no-fault” attendance policies, under which employees are generally allocated “points” or “occurrences” as penalties for absences or lateness, employers will no longer be able to assign such penalties if an absence results from an employee’s exercise of rights under applicable leave laws.
As amended, Section 215 provides current and former employees a private right of action to claim damages resulting from adverse employment action imposed because an employee takes legally protected leave. A private right of action is not currently available under certain of the leave laws for which Section 215 will now provide anti-retaliation protection. Section 215 also authorizes the New York State Department of Labor to levy civil penalties of up to $10,000 on first-time violators of Section 215 and up to $20,000 for all subsequent violations, and allows employees to claim, in connection with a termination of employment, back pay, front pay, attorneys’ fees, and liquidated damages.
Employers should review their administration of their “no-fault” attendance policies, as well as attendance bonus policies, and make sure (including by training supervisors) that no “demerits” are given and no adverse employment action is taken as a result of employees taking leaves of absence under applicable statutes.