By Steven Siegler
On November 21, 2022, Governor Kathy Hochul signed into law an amendment to the New York Labor Law. The new legislation, which takes effect on February 20, 2023, prohibits employers that maintain “no fault” attendance policies from penalizing workers who use attendance points for legally protected absences. The legislation is intended to protect workers who may have been discouraged from taking a job-protected leave under their employers’ “no fault” attendance policy. To assess the possible impact of this new law, let’s examine what a “no fault” attendance policy is, which employers use such a policy, and what are some potential problems with the policy.
What is a “No Fault” Attendance Policy?
A no fault attendance policy is one where the employer gives an employee a point on their attendance record for each absence, sometimes without regard for the reason for it. If an employee accrues more points than allowed, disciplinary consequences can result. The advantage of such a point system for employers is that it is objective, predictable, and easy to understand. Each absence equals one point – too many points is grounds for discipline.
Who Uses “No Fault” Attendance Policies?
“No fault” attendance policies are popular with employers with large workforces, such as Amazon, FedEx, Walmart, Tyson Foods, and ConAgra Foods. They are also used by employers with a unionized workforce, as negotiated in their collective bargaining agreement. However, small and mid-sized businesses can use “no fault” attendance policies as well.
What are the Potential Problems with a “No Fault” Attendance Policy?
Problems can arise when the policy does not distinguish between absences which are protected by law, such as jury duty or medical leave, and absences which are not protected, such as vacation time. Failing to draw this distinction in a clearly written policy can not only negatively affect employee morale, but also run afoul of various federal and state statutes. According to A Better Balance, a non-profit advocacy group based in New York City, the vast majority of companies using no fault attendance policies failed to make clear that employees will not receive points for qualifying disability-related absences. These policies have drawn criticism from members of the U.S. Senate, including Sens. Elizabeth Warren (D-Mass) and Bernie Sanders (D-Vt.). Worker advocates claim that these types of policies discourage employees from using time they are entitled to.
Impact of New York’s No Fault Attendance Policy Law
The new legislation is aimed at protecting workers who may need to be absent from work for legitimate, legally protected reasons. Under the new law, employers are prohibited from assigning points for legally protected absences, and from retaliating against an employee because they took a legally protected absence. The list of protected absences in New York is long. Included in this list are absences relating to caring for a sick family member, obtaining treatment or diagnosis of a disability, attending jury duty, voting, participating in a domestic violence investigation, serving as a member in the armed forces, and many others.
In light of this new law, employers in New York must carefully assess their “no fault” attendance policies and ensure that job-protected leave is exempted from the point system. If your business uses this type of system, or is considering implementing one, we recommend you consult with our knowledgeable employment lawyers to review your current policy or craft one that is fully compliant with the new law. Contact us today by calling (212) 404-8644 or emailing firstname.lastname@example.org.
 Dina Bakst, Elizabeth Gedmark, and Christian Dinan, “Misled & Misinformed: How Some U.S. Employers Use No Fault Attendance Policies to Trample on Workers’ Rights (And Get Away With It),” A Better Balance, June 2020.
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