New York State Restricts “No-Fault” Attendance Policies

On November 21, 2022, New York State Governor Kathy Hochul signed into law an amendment to New York State Labor Law (NYSLL) § 215 significantly restricting “no-fault” attendance policies. A no-fault attendance policy is one that assesses points, occurrences or other demerits for absences regardless of reason, and which subjects an employee to discipline or other adverse action when a certain number of points, occurrences or other demerits have been accrued.   

As it currently exists, § 215 protects an employee from discrimination and retaliation for making a good faith complaint about a violation of the NYSLL and for exercising certain other rights under the NYSLL.  The amendment to § 215, which takes effect on February 19, 2023, expands the conduct protected from discrimination and retaliation to include using “any legally protected absence pursuant to federal, local, or state law” and defines discrimination and retaliation as including “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.”  The intent of the amendment, as stated in the law’s preamble, is “[t]o ensure that it shall be retaliation for an employer to discipline workers by assessing point[s] or deductions from a timebank when an employee has used any legally protected absence.”  Legally protected absences include those under any federal, state or local law that entitle an employee to take time off from work, such as leave under the Family and Medical Leave Act, the New York Paid Family Leave Law and the myriad other federal and New York State leave laws.

Read more...