Jeffrey (Jeff) H. Ruzal, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in the Law360 Employment Authority, in “NY on Track to Boost Worker Attendance Protections,” by Daniela Porat. (Read the full version – subscription required.)
Following is an excerpt:
New York's Legislature signed off on a unique proposal making it clear that employers cannot punish workers for lawful absences, reinforcing existing protections and potentially sparking a compliance ripple effect in other jurisdictions, attorneys say.
S.1958A/A.8092B seeks to crack down on what are known as no-fault attendance policies. The bill passed both the State Assembly and State Senate at the end of May and is expected to get Democratic Gov. Kathy Hochul's signature.
Typically, under a no-fault attendance policy, employers may assess points against workers for absences, lateness or early departures from work. If the points or demerits add up, a worker may be disciplined or terminated. These systems are known as no-fault policies because workers don't necessarily need to provide a reason for the absence.
The proposal, which would amend New York's labor law, states that employers cannot discriminate or retaliate against workers, including by "assessing any demerit, occurrence, any other point or deductions from an allotted bank of time," for taking protected leave under federal, state or local law….
Broad Strokes
The proposed legislation is worded broadly, and the bill's justification states that employees are entitled to "take legally protected time off from their jobs to address certain medical, caregiving and religious needs without penalty."
Such breadth and ambiguity was "entirely purposeful" so as to trigger noncompliance, said Jeffrey Ruzal, a member of management-side firm Epstein Becker Green.
"It's not necessarily targeting just protected leave for family or medical reasons, but rather other types of leave as well," he said. "I think that that also is going to become potentially the source of significant litigation because of the overbreadth and expansiveness of the proposed law."
The proposed law would encroach on employers' ability to discipline workers for excessive or inappropriate absenteeism, Ruzal said.
"There should be an ability for an employer to track that absenteeism and perhaps assign a value to that absenteeism that may relate or trigger potential discipline," he said. "And I think that it could have a healthy in terrorem effect on excessive unwarranted absenteeism."…
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