New York Enacts A New Lawful Absence Law

By Frank J. Fanshawe, Partner and Eunice Lee, Legal Intern

On November 21, 2022, Governor Kathy Hochul signed into law legislation (“Lawful Absence Law”), which amends Section 215 of the New York Labor Law by prohibiting employers from disciplining employees who take so-called legally protected absences from work.  The law goes into effect on February 19, 2023.  Home care agencies, hospices and managed long term care (MLTC) plans should begin to review their policies and practices to determine if revisions are necessary to comply with this new law by its effective date.

The Lawful Absence Law has two key components.  One component adds to the existing definition of “protected activity” under current law to include instances where an employee uses a “legally protected absence pursuant to federal, local, or state law.”  Although the law does not define or otherwise provide guidance on exactly what constitutes a “legally protected absence pursuant to federal, local, or state law,” it appears that such an extremely broad phrase is intended to capture all existing and future state, federal and local employee leave laws.

Examples of such employee leave laws include (but are not limited to): New York Paid Sick Leave, New York Paid Family Leave, New York Paid COVID-19 Leave, and New York Paid Vaccine Leave, as well as various unpaid leave laws including the Family and Medical Leave Act at the federal level, and multiple New York specific leaves (blood donation leave, bone marrow donation leave, military spouse leave, witness and victims of crime leave, volunteer emergency response leave, jury leave, voting leave).  It may also be interpreted to include workers’ compensation, disability, and unpaid leave as a reasonable accommodation under the Americans with Disabilities Act and New York Executive Law.

Another component of the Lawful Absence Law expands what existing law means under the phrase “threaten, penalize, or in any manner discriminate or retaliate against any employee” so that it will include, on the law’s effective date, any instance where an employer uses an employee’s lawful leave of absence as a basis to discipline, terminate, fail to promote, reduce pay, or otherwise negatively affect the employee’s terms and conditions of employment.  Essentially, once the new law is effective, home care agencies, hospices, MLTCs and all other New York employers will be barred from using employee protected leave of absence as a factor when making employment decisions.

Home care providers, hospices and MLTCs are encouraged to consult with their legal counsel to determine which, if any, of their leave of absence policies need to be modified to comply with the Lawful Absence Law.

Please note that this article is for general, informational purposes, is not legal “advice,” and does not create an attorney-client relationship. Because each case is unique, the information provided should be considered to be general in nature, and should never be considered a substitution for legal counsel. Readers should not take, or refrain from taking, any action based on information in this article without first seeking legal advice from competent counsel.