New York’s New Law and the Focus on No-Fault Attendance Policies

New York State recently passed a law prohibiting employers from considering any legally protected leave in making employee discipline decisions. Accordingly, employers using no-fault attendance policies in New York must review their processes and procedures to ensure compliance. New York’s law accords with other recent scrutiny of no-fault attendance policies.

What are No-Fault Attendance Policies?

No-fault attendance policies often use a point or similar occurrence system for discipline purposes. Employees accrue points for tardies, absences, and other attendance-related issues. Employees are then disciplined, up to termination, after accruing a certain number of points. These policies are often used by employers with a large number of hourly employees including in the manufacturing, food processing, and retail industries.

The Risk

No-fault attendance policies can pose issues if they fail to differentiate between legally protected leave and other types of attendance-related issues. Legally protected leave can include leave under federal laws like the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), the Pregnancy Discrimination Act (PDA), and the Pregnant Workers Fairness Act (PWFA). Additionally, many states have their own laws protecting sick and pregnancy leave, which include anti-retaliation provisions. The failure to differentiate between legally protected leave and other types of leave means that employees are punished for taking legally protected leave. Moreover, the policies can run afoul of the interactive process required for accommodations under laws like the ADA and PWFA. 

The New York Law

Governor Kathy Hochul signed Senate Bill S1958A last fall and it went into effect on February 19, 2023. The law prohibits “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” based upon the use of “any legally protected absence pursuant to federal, local, or state law.” The law makes it unlawful for employers to fire, threaten, or otherwise discriminate or retaliate against employees for their use of lawful absences.

Considerations for Employers

Employers in New York should review their no-fault attendance policies to ensure that legally protected leave is not being counted against employees. Employers using no-fault policies in other states should review their policies as well to ensure compliance with the ADA, FMLA, PDA, PWFA, and the plethora of state sick and pregnancy laws.

If your business requires assistance with this review, contact one of Honigman’s Labor and Employment attorneys here.