On November 21, 2022, New York State Governor Kathy Hochul signed into law Bill A8092B (the Law). The Law amends §215 of the New York Labor Law (NYLL) to "clarif[y] that workers shall not be punished or subjected to discipline by employers for lawful absences." Specifically, the Law prohibits employers from "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" stemming from the use of "any legally protected absence under federal, local, or state law." The Law is designed to nullify "no fault" attendance policies, which place points on an employee's record for absences, regardless of the reason behind the absence. As points accrue over time, employees may be subject to discipline, including termination.
Employers should carefully review and update their policies to ensure that the distinction between protected and unprotected time off is clearly defined. While the Law does not define a "legally protected absence pursuant to federal, local, or state law," it should be broadly interpreted to include all New York State, New York City, and federal statutory leave laws. These laws include New York Paid Family and Sick Leave, vaccine leave, Paid COVID-19 Leave, New York City Sick Leave, the Family and Medical Leave Act, the Americans with Disabilities Act, Worker's Compensation, and other miscellaneous leaves, such as voting leave, domestic violence leave, and military leave. Human resources departments should be updated on the revised policies, and these distinctions should be continuously communicated to employees to ensure that they understand and feel comfortable taking time off that they're entitled to under law.
If a violation occurs, the Law provides employees with a private cause of action to enjoin conduct and recover money damages, liquidated damages, and reasonable attorneys' fees from employers. Additionally, the New York State Department of Labor has regulatory authority to issue civil penalties of up to $10,000 for a first violation and $20,000 for subsequent violations (and to require violating employers to reinstate and provide back pay to employees damaged by a violation).
The Law goes into effect on February 23, 2023. Given the penalties for non-compliance, employers should begin working with counsel to implement any necessary changes to their absence policies. If your organization has any questions about compliance with the Law or any leave laws in general, please contact Venable's Labor and Employment Group.