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New York State Prohibits “No Fault” Attendance Policies

December 23, 2022

New York Governor Kathy Hochul signed new legislation on November 21, 2022 amending Section 215.1(a) of the New York Labor Law to ban “no-fault” attendance policies by prohibiting employers from punishing employees or subjecting them to discipline for their lawful absences.  This law intends “[t]o ensure that it shall be retaliation for an employer to discipline workers by assessing point or deductions from a timebank when an employee has used any legally protected absence.”  The amendment take effect on February 19, 2023.

Employers typically establish attendance policies to address concerns of absenteeism in the workplace, and often employ a points system in order to monitor attendance. If employees accrue a certain number of points, occurrences or other demerits, they may be subject to discipline. Under New York State’s new law, such policies that treat all absences, including absences for lawful reasons, the same are prohibited.

The new legislation amends the existing New York State Labor Law anti-retaliation provision to explicitly prohibit discharging, threatening, penalizing, discriminating or retaliating against an employee for taking any legally protected absence pursuant to federal, local, or state law.  Legally protected absences include family or medial leave, disability-related absences, or leave for religious needs.

The amendment also expands the prohibited bases of discrimination or retaliation under Article 7 of the General Provisions of the New York Labor Law, Section 215.1(a), to include “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.” 

Employers who maintain absence control or “no-fault” attendance policies will need to review, and if necessary revise, their policies before the new law takes effect on February 19, 2023.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Ira M. Saxe
Partner – New York
Phone: +1.212.895.4230
Eric Su
Partner – New York
Phone: +1.212.803.4041
Katie Aber
Associate – Washington, D.C.
Phone: +1.202.624.2779
Rachel Lesser
Associate – Washington, D.C.
Phone: +1.202.624.2572