New York Passes Legislation Prohibiting Retaliation against Workers for Taking Legally Protected Time Off

As has been widely discussed of late, Congress recently passed legislation imposing tentative contract agreements on unionized rail workers after it appeared that a strike blocking the deal was imminent.  While reporting on this issue has largely focused on the aversion of a strike that would have likely crippled the U.S. supply chain during a busy winter, the U.S. government’s decision to step in also stripped rail workers’ unions of their leverage to negotiate better terms and conditions of employment.  Indeed, the U.S. government was not obligated to intervene, and the imposition of a deal that a majority of rail workers rejected underscores the power imbalances at play in any employment relationship, whether involving unionized labor or not.

Chief among the terms for which rail workers intended to strike were more favorable sick leave and attendance policies.  Specifically, they sought to renegotiate no-fault attendance policies—a brand of attendance policy under which workers are penalized for tallying a predetermined number of absences over a specified time period.   As detailed in Faruqi & Faruqi, LLP’s pending lawsuit on behalf of a proposed class of correction officers against the City of New York, “no fault” attendance policies like the one in place at the New York City Department of Correction unfairly punish workers with disabilities or who have taken protected leave (e.g., under the Family and Medical Leave Act, or “FMLA”), as well as those who have served in the military or otherwise may require more time off from work than the average person.  See Fulton, et al. v. City of New York, No. 1:20-cv-00144-WFK-MMH (E.D.N.Y.).

With the rail workers’ dispute dominating headlines, the news of New York’s recently passed legislation targeting no-fault attendance policies could not have come at a more opportune time.  Specifically, through another amendment to the New York Labor Law’s anti-retaliation provisions, New York will bar employers from retaliating against their workers for taking legally protected time off.  This includes not only time off that is protected under the FMLA or Americans with Disabilities Act, but also paid sick time and paid family or medical leave (as opposed to FMLA leave, which is unpaid), as well as time off for voting, jury duty, and all other types of leave to which New York employees have a legal right.

The recent amendment also expands the definition of prohibited retaliatory actions 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”—language that is clearly targeted at no-fault attendance policies, specifically.

While other state laws could arguably be interpreted to provide some of these protections, New York will be the first state with a law that explicitly prohibits retaliation for taking protected leave, even when carried out under the terms of a no-fault attendance policy.  

The new law is set to take effect in February 2023.