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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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FMLA Basics

FMLA Basics and Beyond (Webinar Recap)

On October 27, 2022, I presented a complimentary webinar entitled “FMLA Basics and Beyond”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • Coverage & Eligibility
  • Qualifying Circumstances
  • Notice Obligations
  • Compliance Traps
  • Interaction with Other Laws

and much more!

President Bill Clinton signed the Family and Medical Leave Act (FMLA) into law on February 5, 1993. That means employers have been tasked with administering FMLA leaves for almost 30 years now. That doesn’t mean that compliance has become routine!

Though it has been a while since either the FMLA or its significant regulations have been amended, much else has changed in the world surrounding the leave granted by the statute. In this webinar, we take a look at applying the FMLA following a global pandemic and with an ongoing introduction of paid leave requirements that may interact with family and medical leave.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “FMLA Basics and Beyond”

The FMLA is far more involved than simply permitting employees 12 weeks of leave when they get sick or have a child. Did you know that some employees might be eligible to take up to 26 weeks off in a row? Or that employees can take FMLA leave to see a family member off to military service?

Employers with at least 50 employees must comply with the FMLA or risk significant penalties. Not sure whether your organization is covered, this webinar explains how to count employees to determine eligibility. Whether you’re familiar with applying the FMLA or not, it’s a complicated statute with tons of hidden pitfalls. We’ll discuss many of those and warn you where additional concerns may arise.

If you’re responsible for FMLA administration in your organization and haven’t reviewed the legal requirements lately, this is a great opportunity to be reminded of the many implications of employee leave requests. Do you know how the FMLA and ADA interact? What about state paid leave laws, such as sick leave and paid family leave, where they exist?

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Law email newsletter to be among the first to know when registration is open for upcoming programs! And follow us on LinkedIn for even more frequent updates on important employment law issues.

NYS Sick Leave Rules

Final NYS Sick Leave Rules Remain Unchanged, Yet Offer New Guidance

On December 22, 2021, the New York State Department of Labor adopted final regulations regarding the New York State Paid Sick Leave Law. The DOL adopted the rules as originally proposed on December 9, 2020, with no changes. However, in giving notice of the final adoption of the NYS sick leave rules, the DOL responded to many comments it had received on the proposed rules.

While still leaving many concerns unresolved, the DOL has provided some additional guidance to employers. Here’s a look at several key issues the DOL reviewed.

Carry Over

The New York Paid Sick Leave Law provides that employees can carry over unused sick leave from one year to the next. But it also permits employers to limit their employees’ use of sick leave to the statutory level (40 or 56 hours based on employer size) each year.  Consequently, many employees will accrue sick leave that they’d never be eligible to use.

Especially where employers frontload sick leave meeting or exceeding the annual statutory requirement, the carryover requirement is at least a pointless administrative hassle. But it creates more tangible trouble in some cases, including situations where employers include sick leave with other forms of paid leave. This leave aggregation is permissible under the sick leave law. However, the law then seemingly requires that all such paid leave time must be carried over from year to year if unused, even where, as is often the case, the annual paid time off allowance exceeds the statutory sick leave mandate.

The DOL responded directly to three related carry-over questions. Unfortunately, their responses don’t offer much relief to employers struggling with the administrative or substantive mischief the carry-over conundrum can create. The DOL went further to emphasize the significance of the statutory carryover provision: “While the Department understands there may be occasional conflicts between an employer’s existing leave policies and the statute, the statute permits such alternative compliance so long as the standards set in the accrual, use, and carryover provisions are met”. Ironically, the DOL otherwise notes the potential benefits of frontloading sick leave “to avoid added complexity” in calculating leave accrual.

The DOL has found room to allow employers the option to let employees cash out some of their unused sick leave at the end of the year rather than carry it over to the next year.

Employee Rights

The DOL responded to two suggestions under this heading. One seemingly sought to restrict employee rights to use sick time. Another sought to expand on employee protections.

One commenter wanted to prevent new employees from using sick leave immediately upon accrual, fearing the risk of sick leave abuse. The DOL indicated that the law would not permit such a limitation.

Another commenter wanted the rules to include information on employees’ ability to file complaints and be free from retaliation for exercising their rights to use sick leave. The DOL noted that such provisions are already otherwise established by law.

In response to another comment (listed under “Other Leave Usage”), the DOL offered the general assertion that “The Department declines to opine on any potential conflict with existing state or federal statutes, apart from asserting that none are believed to exist.”

Collective Bargaining Agreements

The DOL made one response to comments on the NYS sick leave rules specifically addressing unionized workplaces. The DOL dismissed all comments seeking specific direction related to collective bargaining agreements because “These comments are outside the scope of this rulemaking, which does not directly address CBAs.” Not particularly helpful.

Employee Count

On the other hand, while finding the issue not to be “addressed in this rulemaking,” the DOL nonetheless offered its interpretation that employer coverage under the NYS Paid Sick Leave Law is based on their total U.S. employee count. In other words, not only employees working in New York.

The DOL offered no revision in response to comments on the rule requiring employers to count the highest number of concurrently employed employees. However, it indicated that it “may provide additional guidance for clarity as necessary.”

The DOL declined to address joint employer situations. Instead, it deferred to “existing and settled law.”

Documentation and Attestations

In response to commenters’ suggestions, the DOL indicated it will produce a template for employee attestations.

The agency also warns employers to be cautious when questioning sick leave usage: “An employer may not deny an employee leave while attempting to confirm the basis for the leave. If, however, the employer discovers the request to be false or fraudulent, disciplinary action may be taken against the employee”. The DOL goes on to warn of potential retaliation claims for improperly denying leave or disciplining employees who take it. There is also clarification that even when an employer fears abuse, it may not require documentation for leave less than three days.

The DOL also “declines to create a separate notice requirement for foreseeable leave.”

Notice to Employees

Commenters suggested that the DOL’s NYS sick leave rules include a requirement that employers provide notice of the law’s requirements to employees. The DOL declined to impose such an obligation on employers.

Payment Issues

In response to a comment for clarification of when employers must pay for used sick leave, the DOL confirmed that failing to pay sick leave is “equivalent to a failure to pay employee wages.”

The DOL likewise declined to amend the NYS sick leave rules to define the regular rate of pay. Instead, it offered that “Methods for determining the employee’s regular rate of pay already exists within the Labor Law, the regulations of the Department of Labor, relevant case law, and guidance.”

Overall Message to Employers

Not so subtly, the DOL’s commentary on the adoption of the NYS sick leave rules conveys a refusal to revisit the subject meaningfully. Among other assertions, the DOL dismissively asserts, “The current guidance and FAQs are sufficient in the areas referenced [by commenters] and as such topics are outside of the scope of the rule, no further response is appropriate.” It is disappointing that the DOL chooses to knowingly leave its guidance out of formal rulemaking in favor of addressing it in casual documents with significantly less legal weight. As such, employers are left with various compliance dilemmas in addition to the underlying cost of providing paid leave. It’s even more frustrating that the law complicates leave policies for employers who were already offering more paid time off than the law requires.

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