Employers in New York may be required to provide employees with up to 15 different types of leave, some paid, and some unpaid, some for a few hours, and some extending weeks or even months. Employers are generally aware of certain big categories of obligations with regard to providing employees with time off, like family medical leave and sick leave. But there are a host of other leave categories that may be unfamiliar to them. A recent change to the New York State Labor Law has raised the stakes for employers to know when employees are entitled to leave and ensure that employees are not penalized for taking time off for a legally-protected reason.
Categories of Leave for NYS Employers
As a quick reference point and reality check, the full panoply of leaves available to employees in New York State include the following:
- paid/unpaid sick leave;
- paid family leave;
- paid/unpaid COVID quarantine leave;
- partially paid leave for jury service;
- paid time off to vote in elections;
- paid/unpaid time off for blood donors;
- unpaid leave under the federal Family and Medical Leave Act;
- unpaid leave for military service;
- unpaid leave taken as a reasonable accommodation of a medical condition, religion, or for pregnancy, childbirth or related conditions;
- unpaid break time for nursing mothers;
- unpaid leave for victims of domestic violence, sexual assault or human trafficking (some localities in New York State require paid time off for this purpose);
- unpaid leave to testify as a crime victim;
- unpaid family military leave;
- unpaid leave for bone marrow donors; and
- unpaid leave as a first responder.
Variations in whether an employee needs to be paid for the time off, as noted above, generally depend on the size of the employer. Also, some of the leave laws apply to employers of any size, while many others do not become applicable until the employer has a minimum of 10, 20 or more employees, depending on the specific law.
NYS’s New Restrictions on No-Fault Attendance Policies
New York State has adopted an additional enforcement mechanism to protect employees who take time off that is legally protected under federal, state or local law. The New York State Labor Law was amended earlier this year to provide that employees cannot be retaliated against for using any “legally protected absence.” The new law defines it as “retaliation” for employers to assign points or demerits against employees for being absent from work for a legally-protected reason, where those points can then result in disciplinary action, delay or denial of a promotion, or loss of pay.
Pitfalls for Employers
Employers that fail to grant employees time off and satisfy other requirements already face liability under the respective leave laws. In addition, if an employee is absent from work for a reason that is protected under one of those laws, and the employee is then penalized in some fashion for that absence, the employer now may face additional liability under the Labor Law, including penalties starting at $1,000 and going as high as $20,000 for each employee penalized, an award of liquidated damages, and an order rehiring or reinstating the employee together with lost pay or an award of front pay in lieu of that. Individuals can also file a civil action for violating the retaliation prohibition, and recover liquidate damages of up to $20,000, costs and reasonable attorneys’ fees.
Consider Adopting Precautionary Measures
Employers should confirm with legal counsel which of the leave laws actually apply to their employee population. Employers that have robust employee handbook policies, that reference each of the applicable categories of legally protected leave under New York law, may be able to rely on that reference point to provide notice to employees. A handbook can also serve as a resource for managers to ensure they are properly applying the leave of absence policies.
Employers with less robust handbook policies, or none at all, have additional hurdles to achieve compliance. Managers need to be schooled in the range of leaves available, and know to seek advice whenever there is any question whether a request for leave is for a job-protected reason.
In addition, systems that are used to track employee attendance should be designed to include fields that capture the range of legally protected absences that an employee might take. That way the employee has the right place to code the absence to reduce the risk that it will be improperly counted against a no-fault attendance policy.
By Tracey I. Levy