Reining in Work Attendance Rules: New York Absence Law Explained

The state of New York will bar retaliation against workers for taking legally protected time off, under a new law targeting widely used but controversial points-based attendance policies in the workplace.

Major employers such as Amazon.com Inc., FedEx Corp., and Walmart Inc., have drawn criticism over their use of “no-fault” policies or similar attendance rules, including from members of Congress. Sens. Elizabeth Warren (D-Mass.), Bernie Sanders (D-Vt.), and others called for a US Department of Labor investigation into Amazon’s attendance policy earlier this year.

The issue also has cropped up lately as one of the factors in the railroad labor dispute that President Joe Biden called on Congress to resolve to avoid a major freight rail strike. Major railroad employers agreed to relax their strict attendance policies this year as part of contract negotiations with rail workers’ unions, but several unions still balked at the negotiated deal because of its shortage of paid sick days.

Workplace attendance policies vary by company, but are commonly written to punish hourly workers who take too much time off, sometimes without regard to medical needs or family emergencies.

The New York law isn’t treading entirely new ground in restricting how employers enforce attendance rules. Employers that apply their policies too strictly already can run afoul of federal laws that require employers to grant workers time off in certain circumstances, such as the Family and Medical Leave Act and the Americans with Disabilities Act.

But the New York measure, which Gov. Kathy Hochul (D) signed into law Nov. 21, presents arguably the strictest limits of any state law on workplace attendance policies.

Management-side attorneys are urging New York employers to carefully re-evaluate how they apply their attendance rules. And worker advocates are aiming to spread the concept to other states.

1. What are no-fault attendance policies?

No-fault policies and other variations of absence-management rules assign points or demerits against a worker’s attendance record for absences, sometimes without regard to the reason. The details vary by employer, but companies with these policies can fire or otherwise punish workers after a certain number of absences within a year.

In one example of how points-based attendance policies operate, a 19-year employee of Treehouse Foods Inc. in Georgia was fired for having too many absences despite having medical excuses and seeking unpaid leave as an accommodation for her health conditions, according to the US Equal Employment Opportunity Commission. The EEOC sued the company for disability bias, and in 2021 won a $50,000 settlement plus full retirement benefits for the former employee.

The policies sometimes provide exemptions for legally protected absences, such as time off under the FMLA or medical accommodations protected by the ADA.

But worker advocates say many businesses don’t make it clear to their workers what their legal rights are, misleading them into thinking they can’t take time off without being penalized, even for legally protected leave such as FMLA during pregnancy.

The authors of a 2020 study published by advocacy group A Better Balance said they reviewed 66 companies’ attendance policies covering 18 million employees, predominantly lower-wage, hourly workers in “blue collar and pink collar jobs” that are disproportionately held by women and workers of color. They found a common theme of unclear or misleading policy language that discouraged workers from taking time off needed for illness, pregnancy, or other reasons.

2. What does the New York law change?

New York, like many states with expansive worker protections, already bans employers from firing or otherwise retaliating against workers for exercising their legal rights.

The newly enacted legislation adds to that anti-retaliation law to specifically address workers taking time off and their treatment under employers’ attendance policies. It will take effect in February, 90 days after Hochul’s signature.

The measure adds “any legally protected absence pursuant to federal, local, or state law” to the list of employee actions that are protected from retaliation.

On the other side of the equation, the law expands the list of prohibited retaliatory actions by employers 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.” Loss of pay and failure to receive a promotion are mentioned as examples of discipline.

3. What counts as a protected absence?

The New York measure doesn’t define a protected absence, beyond saying it’s “pursuant to federal, local, or state law.”

The language is likely to apply to federally protected leaves under FMLA or the ADA.

Within the state, New York law provides for paid sick time, paid family and medical leave, as well as time off for voting, jury duty, and other categories of leave.

4. Do other states restrict no-fault attendance policies?

Not as explicitly as the New York law does.

For states that guarantee paid sick time or paid family leave, those laws often include an anti-retaliation provision. But it’s a bit murky as to how strict a workplace attendance policy can be without being deemed retaliatory and illegal.

That’s why worker advocates pushed for the New York law and are urging lawmakers in other states to consider similar legislation.

At least a couple of other states considered related legislation in 2022 but didn’t pass it. A California bill would have banned employer discrimination based on an employee’s family responsibilities, including a provision saying employers must excuse workers from no-fault and similar attendance policies for certain child care and dependent care needs. An Ohio bill would have required pregnancy accommodations in the workplace, such as excusing certain pregnancy-related absences from an employer’s no-fault or similar attendance policy.

Until now, much of the regulatory effort to rein in attendance policies has come from federal agencies, in particular the EEOC.

For more than a decade, the commission has brought a steady stream of disability discrimination claims against employers, accusing them of enforcing attendance policies in a way that fails to accommodate workers’ serious medical conditions. In 2011, the agency won a $20 million settlement from Verizon Communications Inc. after alleging companywide abuses of attendance rules, which at the time was the largest EEOC settlement of its kind.