New York Employers Could Not Penalize Staff For Lawful Absences – Worker Advantages & Compensation

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As is seemingly customary at this level, New York employers
can’t ease into the New 12 months and should as a substitute revisit their
worker handbooks as a result of a current modification to the New York Labor
Legislation that takes impact February 19, 2023.

The Lawful Absence Legislation amends Part 215 of the Labor Legislation to
bar employers from disciplining staff who take legally
protected day without work from work. The protected worker conduct
consists of using “any legally protected absence underneath
federal, state or native legislation.” That would come with any statutory
depart legislation akin to accepted absences underneath the Individuals with
Disabilities Act (ADA), Household and Medical Go away Act (FMLA), New
York Paid Sick Go away, the New York Metropolis Protected and Sick Go away Act,
and varied different legal guidelines defending staff who miss time for
COVID-19 causes.

The statutory language is evident concerning the kinds of employer
conduct which might be prohibited: employers might not assess “any
demerit, prevalence, or another level, or deductions from an
allotted financial institution of time, which topics or may topic an worker
to disciplinary motion.” Employers must also tread fastidiously
in making promotion, salary-increase, and bonus choices that
depend any such lawful absences towards their staff.

This modification signifies that employers who’ve adopted no fault
attendance insurance policies must revisit these insurance policies as they will now
give rise to legal responsibility except fastidiously tailor-made to exclude any
legally protected absences when assessing factors. Word that as a result of
the legislation prohibits actions that “may” set off
disciplinary motion, level or demerit insurance policies predicated on
attendance points could also be a preferred topic for worker complaints
and lawsuits, even absent any employer hostile motion primarily based on the
worker’s attendance points.

Employers are properly suggested to be aware earlier than assessing factors
or disciplining an worker for a legally permissible absence and
in any other case violating this statute on condition that an aggrieved worker
can file swimsuit in court docket and, as is the case with most violations of
the New York Labor Legislation, recuperate 100% liquidated damages, again pay
and entrance pay, and attorneys’ charges. Moreover, civil
penalties will be assessed by the New York Division of Labor.

The modification continues the pattern of presidency trying to
shield the rights of staff who’re required to overlook work due
to medical circumstances and different occasions. For instance, in response to
the USA Division of Labor and as accepted by the Second
Circuit Courtroom of Appeals, Part 2615(a)(1) of the FMLA prohibits
employers from assessing factors towards staff who take FMLA
depart. See Woods v. START Remedy & Restoration Facilities,
, 864 F.3d 158 (2nd Cir. 2017); 29 C.F.R. 825.220(c). The
message to employers is crystal clear: deal with fastidiously when
using absence management insurance policies.

The content material of this text is meant to supply a common
information to the subject material. Specialist recommendation needs to be sought
about your particular circumstances.

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Developments In Employment Legislation As We Head Into 2023

Kramer Levin Naftalis & Frankel LLP

As we head into a brand new 12 months, it can be crucial for employers to concentrate on and plan for developments in varied areas of employment legislation which have just lately taken impact or will take impact in 2023.

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