Seyfarth Synopsis: Effective February 19, 2023, New York employers will be liable for retaliating against employees for making use of legally-protected absences.

On November 21, 2022, New York Governor Kathy Hochul signed into law a bill that "[c]larifies that workers shall not be punished or subjected to discipline by employers for lawful absences." Once the law takes effect on February 19, 2023, employers will be liable for retaliation if they assess points or make deductions from a bank of time when employees use a legally protected absence.

Officially titled "An act to amend the labor law, in relation to clarifying that workers shall not be punished or subjected to discipline by employers for lawful absences," the law takes aim at discipline by employers for legally protected absences. Although the new law does not create any new type of protected absence, employers should be aware of the hazards presented by this legislation, and the corresponding penalties that could be enforced for acts of unlawful retaliation.

Under New York's existing anti-retaliation law, specifically New York Labor Law ("NYLL") Section 215, employers may not discharge, threaten, penalize, or "in any other manner discriminate or retaliate against any employee" due to (a) that employee's good faith complaints of alleged unlawful conduct, (b) a number of situations pertaining to such complaints, or (c) the employee otherwise exercising protected rights under the NYLL.

The latest law adds one more anti-retaliation obligation for employers: as of February 19, 2023, employers are prohibited from retaliating against any employee "because such employee has used any legally protected absence pursuant to federal, local, or state law." The law further amends NYLL Section 215 to prohibit employers from "assessing any demerit, occurrence, any other point, or deducting 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."

As such, employers must ensure that employees are not treated adversely due to their taking a legally protected leave, such as, but not limited to, paid sick leave, paid family leave, or a COVID-19-related leave. While these and other types of protected leaves generally already come with provisions that prohibit employers from taking adverse action against employees for exercising their right to protected time off, the new law adds another layer of penalties that employers could face for such unlawful retaliation.

Violations of NYLL Section 215 can carry fines of up to $10,000, and up to $20,000 for subsequent violations. Additional relief can include liquidated damages, front pay, restitution for lost compensation, and reinstatement. Enforcement can come through the New York State Labor Commissioner or through a private cause of action.

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