“No-Fault” Attendance Policies Now Unlawful in New York: What Should Employers Do?

28 November 2022 Labor & Employment Law Perspectives Blog
Author(s): Scott T. Allen

Last week, New York State enacted legislation that bans “no-fault” attendance policies. The new law, which will take effect in 90 days, prohibits employers from penalizing workers based on “use of any legally protected absence pursuant to federal, local, or state law,” and clarifies that assessing attendance points (or taking similar actions such as issuing demerits/occurrences or deducting from a time bank) constitutes retaliation under the law.  (Lawmakers’ written justification for the law contends that no-fault attendance policies discourage workers from taking protected leave and fail to inform them of their rights.)

This development may come as a surprise to employers in industries where no-fault attendance policies are common, including in union settings.  Such policies generally involve employees accruing “points” or “occurrences” when they are late or miss work, with certain exceptions for vacation, job-protected leave including under the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA), and other approved time off.  Such policies are simple for employers to administer and also reduce burdens on workers by eliminating the need to obtain doctor’s notes and other documentation for absences.

We have previously discussed how no-fault attendance policies should deal with FMLA absences, as well as the extent to which absences due to COVID-19 may qualify as disability leave under the ADA that would warrant an exception to such policies.  As a reminder, attendance policies must treat FMLA leave absences comparable to other forms of leave.  For example, under EEOC guidance, employers must generally modify no-fault attendance policies to provide employees additional leave when necessary to accommodate a disabled employee.  However, while noting that certain exceptions are required, courts have generally upheld no-fault attendance policies as lawful.

New York’s law goes further than the existing protections by declaring that the issuance of any attendance points (or equivalents) for protected absences constitutes retaliation, even when such points do not result in discipline or termination.  Accordingly, New York employers must consider exceptions for any and all absences that result in attendance points to workers, and not only when they receive formal discipline as a result.

Whether in New York or elsewhere, employers with no-fault attendance policies should review their handbooks and consider applicable state or local laws that may conflict with such policies.  Attendance policies that cover New York employees, including those who work remotely, must now clarify that no attendance points (or equivalents) will be issued when workers take protected leave under federal, state, or local law.

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