Under legislation signed into law last week, New York employers cannot assess points, deduct time from a time bank, or otherwise penalize an employee for using a legally protected absence. The law takes effect February 20, 2023.

The new law amends Section 215 of the New York Labor Law in two ways. First, it adds taking legally protected absences under state, federal, or local law to the definition of protected activity. Second, it expands the definition of retaliation to include "assessing any demerit, occurrence, any other point, or deductions from an allotted bank of time, 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."

Although many of the statutes that provide employees with the right to legally protected absences already prohibit retaliation, some of them, like the New York City Paid Sick Leave Law, do not provide a private right of action to employees. Under this amendment, employees who believe they have been improperly penalized for an absence can bring a claim within two years of any alleged violation and may recover lost compensation, liquidated damages, costs, attorneys' fees, and reinstatement or front pay.

This legislation may impact many types of employer policies and programs, including "no fault" attendance policies and attendance bonuses. While the legislation does not ban "no fault" attendance policies in their entirety, it makes clear that any absence protected by federal, state, or local law must be excluded. The new law may also impact employers' ability to take these absences into account in bonus programs. Employers should expect an uptick in claims associated with attendance policies given the increase in damages available for these claims.

In advance of the upcoming effective date, employers should ensure that their attendance policies do not penalize employees for absences protected by federal, state, or local laws, and that any bonus programs do not improperly consider such absences.

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