“No-fault” and similar attendance policies typically assign points or demerits against a worker’s attendance record for absences. When drafted properly, these policies provide exemptions for legally protected absences.  There are many laws, such as the Family & Medical Leave Act, Americans with Disabilities Act, New York Paid Family Leave, and New York Paid Sick Time Law, that allow employees to take legally protected time off from their jobs in order to address medical, caregiving and other needs.  When it is not clear to employees what their legal rights are when it comes to no-fault or similar attendance policies, they may be discouraged from taking legally protected time off.

Recent amendments to the New York Labor Law seek to remedy this issue.  Specifically, Labor Law Section 215 has been amended to clarify that an employer may not discriminate or retaliate against any employee “because such employee has used any legally protected absence pursuant to federal, local or state law.”  The amendment also specifically provides that unlawful discrimination/retaliation includes assessing any demerit, occurrence, point or deductions from an allotted bank of time, which could subject an employee to discipline or other punishment.  

Violations of New York Labor Law Section 215 can result in fines of up to $10,000 (or $20,000 for subsequent violations).  Additional relief can include back pay, front pay or reinstatement, liquidated damages (up to $20,000), and attorneys’ fees.  Employees may file complaints with the Department of Labor or bring their own civil action.

This new amendment will become effective on February 19, 2023.  Employers should review their leave and attendance policies and practices now to ensure they are properly complying with this and other federal, state and local leave-related laws.