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Lawful Absences

New York Expressly Forbids Retaliation for Lawful Absences from Work

On November 21, 2022, Governor Hochul signed an amendment to the New York Labor Law to enhance employee protections against retaliation. The amendment adds an express prohibition of retaliation for any lawful absences from work. The amendment takes effect on February 19, 2023.

New York Labor Law Section 215

Section 215 of the New York Labor Law generally prohibits private (non-governmental) employers from discriminating against employees for engaging in a wide array of protected activities. Before this amendment, these protected activities included:

  • Making a complaint that the employee’s employer has engaged in conduct that the employee reasonably and in good faith believes violates any provision of the Labor Law or order of the Commissioner of Labor;
  • Being perceived by the employer as having made such a complaint;
  • Instituting a proceeding under or related to the Labor Law;
  • Providing information to the Department of Labor or the Attorney General;
  • Testifying in an investigation or proceeding under the Labor Law;
  • Exercising other rights protected by the Labor Law;
  • Being the subject of an adverse determination from the Commissioner of Labor against one’s employer.

Employees may file retaliation claims in court or with the Commissioner of Labor. Penalties can include repayment of lost wages; liquidated damages; and civil penalties of $1,000 to $10,000 for the first offense and up to $20,000 for the second offense. Violation of Section 215 also constitutes a class B misdemeanor.

Amendment Addressing Lawful Absences

The amendment expands the definition of protected activity to prohibit retaliation because an “employee has used any legally protected absence pursuant to federal local, or state law.”

Unfortunately, this new language is vague. If read broadly, as the Legislature likely intended, it will encompass numerous paid and unpaid leave laws, including:

  • New York Paid Sick Leave
  • New York Paid Family Leave
  • New York Paid COVID-19 Leave
  • New York Paid Vaccine Leave
  • Family and Medical Leave
  • Other specific New York Leaves, such as:
    • Blood Donation Leave
    • Bone Marrow Donation Leave
    • Military Spouse Leave
    • Witness and Victims of Crime Leave
    • Volunteer Emergency Response Leave
    • Jury Leave
    • Voting Leave

Employees are also often allowed time off while receiving workers’ compensation or disability benefits or as an accommodation under the Americans with Disabilities Act and New York Human Rights Law. None of these legal authorities specifically grants employees time off from work. However, it is plausible that Labor Law Section 215 will be interpreted to include leaves under these circumstances.

No-Fault Attendance Policies

Many employers apply attendance policies that allocate points on an employee’s record for each absence. Commonly, these policies apply regardless of the purpose or reason for the absence. Such policies are known as “no-fault” attendance policies. Whether the reason for the absence matters or not, point-based policies result in pre-specified employment consequences when employees reach certain levels.

The amendment to Labor Law Section 215 adds a specific prohibition against “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.”

Practical Impact

It is arguable whether this amendment really expands worker protections. Generally speaking, various laws would likely already prohibit adverse employment action against employees for taking lawful absences from work. Section 215 itself probably already would have applied in many such situations.

But the Legislature at least intends to shed light on the subject and potentially increase available penalties. Accordingly, New York employers should review existing policies and practices regarding their handling of lawful absences by employees. Moreover, managers must understand the types of absences that may be protected under applicable laws.

 

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Military Caregiver Leave

FMLA Military Caregiver Leave

For most qualifying purposes, the Family and Medical Leave Act (FMLA) permits eligible employees to take up to 12 weeks of unpaid leave per year. However, one form of leave can last for much longer. An employee who qualifies for “military caregiver leave” has a right to up to 26 weeks of leave to provide care for an ill or injured military servicemember. But this form of leave is limited in other ways.

FMLA Eligibility

As a threshold for eligibility, an employee must have been with the employer for at least one year and have worked more than 1250 hours in the past 12 months. In addition, the employee must work within a 75-mile radius of at least 50 total employees of the same employer.

For more on FMLA eligibility, read “Who Is an FMLA Eligible Employee?”.

FMLA Qualifying Circumstances

Employees most commonly take FMLA leave due to the birth/adoption of a child or due to a serious medical condition that they or a close family member is suffering.

FMLA leave is also available in two situations involving military service. These scenarios are respectively known as “qualifying exigency leave” and “military caregiver leave.”

Under the FMLA, employees are limited to 12 weeks of leave per year based on birth/adoption of a child, serious medical conditions, and qualifying exigencies. Only military caregiver leave has a separate maximum leave period.

Covered Servicemembers

Employees may be eligible for military caregiver leave based on the serious injury or illness of a family member who is a “covered servicemember.”

Covered servicemembers are current members of the U.S. Armed Forces, including a member of the National Guard or Reserves, who are either:

  • receiving medical treatment, recuperation, or therapy;
  • in outpatient status; or
  • on the temporary disability retired.

The above conditions must be based on a “serious injury or illness.”

Serious Injury or Illness

Under the FMLA, a “serious injury or illness” is one that a servicemember incurred in the line of duty on active duty that may cause the servicemember to be medically unfit to perform the duties of their office, grade, rank, or rating. Pre-existing injuries or illnesses aggravated by active duty service also qualify.

Family Relationship

To take military caregiver leave under the FMLA, the covered servicemember must be the employee’s spouse, child, parent, or next of kin.

Available Leave

An employee may take up to 26 weeks of FMLA to care for a covered servicemember. However, unlike other forms of FMLA leave, this leave is limited to a single leave period that does not recur annually. More specifically, the 26 weeks must be taken in a single 12-month period that begins when the employee first takes military caregiver leave for the particular servicemember and illness/injury.

Note; If the employee’s covered servicemember relative has a different serious illness or injury, then the employee may be eligible for another leave of up to 26 weeks in a new single 12-month period.

Certification

As with other forms of FMLA leave, employers may require employees to provide documentation certifying their eligibility to take military caregiver leave.

The U.S. Department of Labor provides an optional “Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave under the Family and Medical Leave Act” form.

Process FMLA Requests Carefully

As with all forms of FMLA leave, an employee doesn’t have to specifically request “military caregiver leave” or even “FMLA leave.” Once the employee provides enough information that they may qualify for leave protected by the FMLA, employers must provide appropriate documentation of employee rights and eligibility. Failing to do so or to designate leave as FMLA leave could result in an employee retaining the right for protected leave at a later date, among other potential negative consequences to the employer.

2021 Paid Family Leave

2021 Paid Family Leave in New York

We are now in the third year of New York’s Paid Family Leave Program. It continues to get more costly for employees. But the benefits also get better. Here a primer on New York’s 2021 Paid Family Leave Program.

Employee Contributions

The New York Department of Financial Services (DFS) has announced the maximum employee-contribution rate for 2021. It will increase from 0.270% to  0.511% of the employee’s gross wages, up to an annual maximum. This maximum annual contribution will be $385.34 in 2021 compared to $196.72 in 2020.

The contribution rate increased from 0.153% to 0.270% in 2020. That changed the maximum annual contribution from $107.97 to $196.72. Thus, the maximum annual contribution has nearly doubled since last year and increased overall by 350% in just 3 years.

This means an additional annual cost of up to nearly $300 for many employees from 2018 to 2021. And additional increases remain likely each year.

2021 Paid Family Leave Benefits

But it’s not all bad news for workers. DFS also confirmed that the weekly paid family leave benefit will increase again in 2021. The weekly benefit rate increases from 60% of the employee’s average weekly wage to 67%. This percentage only applies up to the first $1,450.17 of weekly earnings. An employee who earns more than that can only receive $971.61 per week in paid family leave benefits.

The maximum leave allowance also increases from 10 weeks in 2019-2020 to 12 weeks in 2021. That is the last scheduled increase in the length of the paid leave allowance, which began at 8 weeks in 2018.

Preparing for 2021

Companies should confirm their 2021 paid family leave premiums with their insurance carriers. Then make sure that next year’s payroll will include the correct contribution rates.

If your paid family leave policy reflected specific rates for paid family leave in 2020 (or earlier), then you might want to update that component.

This is also an excellent opportunity for employers to review which employees are eligible to opt out of the paid family leave program. Employers must offer qualifying employees the chance to waive coverage (and corresponding paycheck deductions). However, the waiver automatically expires if the employee later becomes eligible for paid family leave.

Finally, employers might find that these changes coupled with unique COVID-19 issues increase the utilization of paid family leave in 2021. First, the benefits are higher and last longer, making it more financially viable for employees to take time off from work. Plus, since employees have to pay more for the program, they might feel even more entitled to use it. These factors might require employers to replace more worker hours next year or otherwise allow for lost productivity.

 

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