S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8092--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 11, 2021
                                ___________
 
 Introduced  by M. of A. REYES -- read once and referred to the Committee
   on Labor -- committee discharged, bill amended, ordered  reprinted  as
   amended and recommitted to said committee
 
 AN  ACT  to  amend  the  executive  law,  the labor law and the workers'
   compensation law, in relation to clarifying that workers shall not  be
   punished or subjected to discipline by employers for lawful absences
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known and may  be  cited  as
 the "Fair Attendance Policy and Practices Act".
   §  2.  Legislative  intent.    It  is the intent of the New York state
 legislature to make it  explicitly  clear  that  workers  shall  not  be
 punished  or  subjected  to discipline for lawful absences. Workers have
 the right to take legally-protected time off from their jobs to  address
 certain medical, caregiving, and religious needs without penalty.
   §  3.  Section  292  of  the  executive law is amended by adding a new
 subdivision 40 to read as follows:
   40. THE TERM "ABSENCE CONTROL OR  NO-FAULT  ATTENDANCE  POLICY"  SHALL
 MEAN  A  POLICY,  PATTERN,  OR PRACTICE MAINTAINED BY AN EMPLOYER, LABOR
 ORGANIZATION, OR EMPLOYMENT AGENCY UNDER  WHICH  EMPLOYEES  FACE  CONSE-
 QUENCES  FOR  ANY ABSENCE, TARDY, OR EARLY DEPARTURE THROUGH THE ASSESS-
 MENT OF POINTS, ALSO  REFERRED  TO  AS  "DEMERITS  OF  OCCURRENCES",  OR
 DEDUCTIONS  FROM AN ALLOTTED BANK OF TIME, AND SUCH POINTS OR DEDUCTIONS
 SUBJECT THE  EMPLOYEE  TO  PROGRESSIVE  DISCIPLINARY  ACTION  WHICH  MAY
 INCLUDE FAILURE TO RECEIVE A PROMOTION, LOSS OF PAY, OR TERMINATION.
   §  4.  Subdivision 1 of section 296 of the executive law is amended by
 adding a new paragraph (i) to read as follows:
   (I) FOR AN EMPLOYER,  LABOR  ORGANIZATION,  OR  EMPLOYMENT  AGENCY  TO
 ASSESS  POINTS,  OCCURRENCES, OR OTHERWISE DISCIPLINE EMPLOYEES, INCLUD-
 ING, BUT NOT LIMITED TO, THROUGH AN ABSENCE CONTROL OR NO-FAULT  ATTEND-
 ANCE  POLICY,  FOR ABSENCES RELATED TO AN ACCOMMODATION TO A KNOWN DISA-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03487-05-2
              

 A. 8092--A                          2
 
 BILITY, PREGNANCY-RELATED CONDITION, OR OTHERWISE PROTECTED  BY  SECTION
 TWO  HUNDRED  NINETY  OF  THIS ARTICLE. NOTHING IN THIS SECTION SHALL BE
 DETERMINED TO DIMINISH  THE  RIGHTS,  PRIVILEGES,  OR  REMEDIES  OF  ANY
 EMPLOYEE UNDER ANY OTHER LAW OR REGULATION.
   § 5. The labor law is amended by adding a new section 202-n to read as
 follows:
   §  202-N.  PROTECTION  OF  LEGAL  ABSENCES.  1.  THE  TERM "ABSENCE OR
 NO-FAULT ATTENDANCE POLICY" SHALL MEAN A POLICY,  PATTERN,  OR  PRACTICE
 MAINTAINED  BY  AN  EMPLOYER,  LABOR  ORGANIZATION, OR EMPLOYMENT AGENCY
 UNDER WHICH EMPLOYEES FACE CONSEQUENCES FOR ANY ABSENCE, TARDY, OR EARLY
 DEPARTURE THROUGH THE ASSESSMENT OF POINTS, ALSO REFERRED TO AS  "DEMER-
 ITS  OF  OCCURRENCES",  OR DEDUCTIONS FROM AN ALLOTTED BANK OF TIME, AND
 SUCH POINTS OR DEDUCTIONS SUBJECT THE EMPLOYEE TO PROGRESSIVE  DISCIPLI-
 NARY  ACTION  WHICH  MAY INCLUDE FAILURE TO RECEIVE A PROMOTION, LOSS OF
 PAY, OR TERMINATION.
   2. AN EMPLOYER, LABOR ORGANIZATION, OR  EMPLOYMENT  AGENCY  SHALL  NOT
 ASSESS  POINTS,  OCCURRENCES, OR OTHERWISE DISCIPLINE EMPLOYEES, INCLUD-
 ING, BUT NOT LIMITED TO, THROUGH AN ABSENCE CONTROL OR NO-FAULT  ATTEND-
 ANCE  POLICY,  FOR  ABSENCES  PROTECTED  BY THE NEW YORK STATE PAID SICK
 LEAVE LAW PURSUANT TO SECTION ONE HUNDRED NINETY-SIX-B OF THIS  CHAPTER,
 THE  NEW  YORK  STATE MILITARY SPOUSAL LEAVE LAW PURSUANT TO SECTION TWO
 HUNDRED TWO-I OF THIS ARTICLE, OR OTHERWISE PROTECTED BY  ARTICLE  THIR-
 TY-ONE  OF  THIS  CHAPTER.  NOTHING  IN  THIS SECTION SHALL BE DEEMED TO
 DIMINISH THE RIGHTS, PRIVILEGES, OR REMEDIES OF ANY EMPLOYEE  UNDER  ANY
 OTHER LAW OR REGULATION.
   § 6. The labor law is amended by adding a new section 202-o to read as
 follows:
   §  202-O.  PROTECTION  OF  LEGAL ABSENCES; POLICY REQUIREMENTS. 1. FOR
 PURPOSES OF THIS SECTION, "ABSENCE OR NO-FAULT ATTENDANCE POLICY"  SHALL
 HAVE  THE  SAME  MEANING  AS  DEFINED  IN SUBDIVISION ONE OF SECTION TWO
 HUNDRED TWO-N OF THIS ARTICLE.
   2. AN EMPLOYER, LABOR ORGANIZATION, OR  EMPLOYMENT  AGENCY  SHALL  NOT
 MAINTAIN  AN  ABSENCE  CONTROL  OR NO-FAULT ATTENDANCE POLICY, UNLESS IT
 COMPLIES WITH THE FOLLOWING:
   (A) THE POLICY SHALL BE DISTRIBUTED IN WRITING TO ALL CURRENT  EMPLOY-
 EES WITHIN THIRTY DAYS OF WHEN THIS SECTION BECOMES EFFECTIVE. THEREAFT-
 ER,  THE  POLICY SHALL BE DISTRIBUTED IN WRITING TO ALL EMPLOYEES AT THE
 TIME OF HIRE AND WITHIN FIVE DAYS OF WHEN ANY CHANGES TO THE POLICY  ARE
 MADE;
   (B)  EMPLOYEES MUST HAVE A MEANS OF ACCESSING THE POLICY BOTH AT THEIR
 PHYSICAL WORKPLACE AND OUTSIDE OF SUCH WORKPLACE;
   (C) THE POLICY MUST MAKE CLEAR THAT EMPLOYEES WILL NOT  FACE  NEGATIVE
 CONSEQUENCES,  SUCH AS BE ASSESSED WITH POINTS OR OCCURRENCES, OR OTHER-
 WISE FACE DISCIPLINARY ACTION, FOR ABSENCES THAT ARE PROTECTED BY LAW;
   (D) THE POLICY MUST SPECIFICALLY REFERENCE AND  PROVIDE  A  REASONABLE
 AMOUNT  OF DETAIL ABOUT ALL LAWS THAT PROVIDE LEGAL PROTECTIONS FOR TIME
 OFF AND LEGALLY PROTECTED REASONS FOR LEAVE, INCLUDING, BUT NOT  LIMITED
 TO,  (I)  THE AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. § 12101
 ET SEQ., AS AMENDED; (II) THE FAMILY AND MEDICAL LEAVE ACT OF  1993,  29
 U.S.C.  §  2601  ET  SEQ.;  (III)  THE  NEW YORK STATE HUMAN RIGHTS LAW,
 SECTION 290 ET SEQ. OF THE EXECUTIVE LAW; (IV) THE NEW YORK  STATE  PAID
 FAMILY  LEAVE  ACT,  N.Y. WORKERS' COMP. LAW, § 200 ET SEQ.; AND (V) THE
 NEW YORK STATE PAID SICK LEAVE LAW, N.Y. LAB. LAW, § 196-B ET SEQ.
   (E) THE POLICY SHALL IDENTIFY A PROCESS FOR EMPLOYEES TO COMPLETE EACH
 OF THE FOLLOWING:
 A. 8092--A                          3
 
   (I) REPORT THAT AN ABSENCE IS  FOR  A  LEGALLY  PROTECTED  REASON  FOR
 LEAVE;
   (II) PROVIDE MEDICAL DOCUMENTATION;
   (III)  SEEK REMOVAL OF POINTS OR OCCURRENCES THAT AN EMPLOYEE BELIEVES
 WERE WRONGLY ASSESSED; AND
   (IV) PERMIT DELAYED REPORTING OF AN ABSENCE IN UNFORESEEN AND/OR EMER-
 GENCY CIRCUMSTANCES WITHOUT INCURRING ADDITIONAL POINTS OR DISCIPLINE.
   3. FOR EMPLOYERS WHO CHOOSE TO MAINTAIN AN ABSENCE CONTROL POLICY, THE
 DEPARTMENT, IN COLLABORATION WITH THE DIVISION OF HUMAN RIGHTS  AND  THE
 WORKERS' COMPENSATION BOARD, SHALL DEVELOP A MODEL ABSENCE CONTROL POLI-
 CY  THAT  CONFORMS  TO  THE REQUIREMENTS OF THIS SECTION. THE DEPARTMENT
 SHALL MAKE SUCH MODEL POLICY AVAILABLE ON ITS  WEBSITE  IN  ENGLISH  AND
 SPANISH AND ANY OTHER LANGUAGE DEEMED APPROPRIATE BY THE DEPARTMENT.
   4. IF ANY EMPLOYER IS FOUND TO MAINTAIN AN ABSENCE CONTROL OR NO-FAULT
 ATTENDANCE  POLICY  THAT  IS NOT COMPLIANT WITH THE REQUIREMENTS OF THIS
 SECTION, THE EMPLOYER SHALL BE LIABLE FOR A PENALTY OF FIFTY DOLLARS FOR
 EACH WORK DAY THAT THE VIOLATIONS OCCURRED OR CONTINUE TO OCCUR, BUT NOT
 TO EXCEED A TOTAL OF FIVE THOUSAND DOLLARS.  THE  ATTORNEY  GENERAL  MAY
 BRING  ANY  LEGAL  ACTION NECESSARY, INCLUDING ADMINISTRATIVE ACTION, TO
 COLLECT SUCH CLAIM. FOR THE PURPOSE OF  ASSESSING  COMPLIANCE  WITH  THE
 PROVISIONS OF THIS SECTION, THE ATTORNEY GENERAL OR DESIGNEE, OR, IF THE
 EMPLOYER  IS  THE  STATE, THE DIVISION OF HUMAN RIGHTS OR DESIGNEE, MAY,
 WITH FORTY-EIGHT HOURS' NOTICE, AT REASONABLE TIMES AND  WITHOUT  UNDULY
 DISRUPTING  BUSINESS  OPERATIONS ENTER AND INSPECT ANY PLACE OF BUSINESS
 OR EMPLOYMENT, QUESTION ANY PERSON WHO IS AUTHORIZED BY THE EMPLOYER  TO
 RECEIVE  OR  INVESTIGATE COMPLAINTS ABOUT ATTENDANCE ISSUES, AND EXAMINE
 AN EMPLOYER'S RECORDS,  POLICIES,  PROCEDURES,  AND  TRAINING  MATERIALS
 RELATED  TO  THE  REQUIREMENTS OF THIS SECTION. THE ATTORNEY GENERAL, IN
 COLLABORATION WITH THE DEPARTMENT, THE  DIVISION  OF  HUMAN  RIGHTS  AND
 WORKERS' COMPENSATION BOARD, SHALL ADOPT RULES AS NECESSARY TO IMPLEMENT
 THE  PROVISIONS  OF THIS SECTION, INCLUDING A MEANS BY WHICH INDIVIDUALS
 CAN REPORT POLICIES, PATTERNS OR PRACTICES THAT ARE  NOT  IN  COMPLIANCE
 WITH THE PROVISIONS OF THIS SECTION.
   5.  NOTHING  IN  THIS  SECTION SHALL BE DEEMED TO DIMINISH THE RIGHTS,
 PRIVILEGES, OR REMEDIES OF ANY EMPLOYEE UNDER ANY  OTHER  LAW  OR  REGU-
 LATION.
   § 7. Section 201 of the workers' compensation law is amended by adding
 a new subdivision 25 to read as follows:
   25.  "ABSENCE  CONTROL  OR NO-FAULT ATTENDANCE POLICY" MEANS A POLICY,
 PATTERN, OR PRACTICE MAINTAINED BY AN EMPLOYER, LABOR  ORGANIZATION,  OR
 EMPLOYMENT  AGENCY  UNDER  WHICH  EMPLOYEES  FACE  CONSEQUENCES  FOR ANY
 ABSENCE, TARDY, OR EARLY DEPARTURE THROUGH  THE  ASSESSMENT  OF  POINTS,
 ALSO  REFERRED  TO  AS  "DEMERITS OF OCCURRENCES", OR DEDUCTIONS FROM AN
 ALLOTTED BANK OF TIME, AND SUCH POINTS OR DEDUCTIONS SUBJECT THE EMPLOY-
 EE TO PROGRESSIVE DISCIPLINARY  ACTION  WHICH  MAY  INCLUDE  FAILURE  TO
 RECEIVE A PROMOTION, LOSS OF PAY, OR TERMINATION.
   §  8. The workers' compensation law is amended by adding a new section
 203-d to read as follows:
   § 203-D. PROTECTION FOR LEGAL ABSENCES. 1. AN EMPLOYER,  LABOR  ORGAN-
 IZATION,  OR  EMPLOYMENT AGENCY SHALL NOT ASSESS POINTS, OCCURRENCES, OR
 OTHERWISE DISCIPLINE EMPLOYEES, INCLUDING, BUT NOT LIMITED  TO,  THROUGH
 AN ABSENCE CONTROL OR NO-FAULT ATTENDANCE POLICY, FOR ABSENCES PROTECTED
 BY  THE  NEW  YORK STATE PAID FAMILY LEAVE ACT OR OTHERWISE PROTECTED BY
 THIS CHAPTER.
   2. THE PROVISIONS OF SECTION ONE HUNDRED TWENTY OF THIS CHAPTER  SHALL
 BE APPLICABLE TO THIS SECTION.
 A. 8092--A                          4
 
   3.  NOTHING  IN  THIS  SECTION SHALL BE DEEMED TO DIMINISH THE RIGHTS,
 PRIVILEGES, OR REMEDIES OF ANY EMPLOYEE UNDER ANY  OTHER  LAW  OR  REGU-
 LATION.
   §  9.  Paragraph  (c) of subdivision 3 of section 296 of the executive
 law, as added by chapter 369 of the laws of 2015, is amended to read  as
 follows:
   [(c)]  (C-1) The employee must cooperate in providing medical or other
 information that is necessary to verify the existence of the  disability
 or  pregnancy-related  condition, or that is necessary for consideration
 of the accommodation. The employee has a  right  to  have  such  medical
 information  kept  confidential.  AS PART OF THE GOOD FAITH, INTERACTIVE
 PROCESS, THE EMPLOYER MUST AFFORD THE EMPLOYEE A REASONABLE  OPPORTUNITY
 TO  PROVIDE  MEDICAL OR OTHER INFORMATION WHICH MAY PRECLUDE THE ASSESS-
 MENT OF POINTS, OCCURRENCES, OR OTHER FORMS OF DISCIPLINE, INCLUDING BUT
 NOT LIMITED TO PURSUANT TO AN ABSENCE  CONTROL  OR  NO-FAULT  ATTENDANCE
 POLICY.
   §  10. Severability clause. If any clause, sentence, paragraph, subdi-
 vision, section or part of this act shall be adjudged by  any  court  of
 competent  jurisdiction  to  be invalid, such judgment shall not affect,
 impair, or invalidate the remainder thereof, but shall  be  confined  in
 its  operation  to the clause, sentence, paragraph, subdivision, section
 or part thereof directly involved in the controversy in which such judg-
 ment shall have been rendered. It is hereby declared to be the intent of
 the legislature that this act would  have  been  enacted  even  if  such
 invalid provisions had not been included herein.
   §  11.  This act shall take effect on the ninetieth day after it shall
 have become a law. Effective immediately, the addition, amendment and/or
 repeal of any rule or regulation necessary  for  the  implementation  of
 this  act  on its effective date are authorized to be made and completed
 on or before such date.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8092--B
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 11, 2021
                                ___________
 
 Introduced  by M. of A. REYES, JACOBSON -- read once and referred to the
   Committee on Labor --  committee  discharged,  bill  amended,  ordered
   reprinted  as amended and recommitted to said committee -- recommitted
   to the Committee on Labor in accordance with Assembly Rule 3,  sec.  2
   --  committee  discharged,  bill amended, ordered reprinted as amended
   and recommitted to said committee
 
 AN ACT to amend the labor law, in relation to  clarifying  that  workers
   shall  not  be  punished  or  subjected to discipline by employers for
   lawful absences
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Paragraph (a) of subdivision 1 of section 215 of the labor
 law, as amended by chapter 564 of the laws of 2010,  the  closing  para-
 graph  as  added  by  chapter  126  of  the  laws of 2019, is amended as
 follows:
   (a) No employer or his or her agent, or the officer or  agent  of  any
 corporation,  partnership,  or  limited  liability company, or any other
 person, shall discharge, threaten, penalize,  or  in  any  other  manner
 discriminate or retaliate against any employee (i) because such employee
 has  made  a complaint to his or her employer, or to the commissioner or
 his or her authorized representative, or to the attorney general or  any
 other  person, that the employer has engaged in conduct that the employ-
 ee, reasonably and in good faith, believes  violates  any  provision  of
 this  chapter, or any order issued by the commissioner (ii) because such
 employer or person believes that such employee has made a  complaint  to
 his  or  her  employer,  or to the commissioner or his or her authorized
 representative, or to the attorney general, or to any other person  that
 the  employer  has  violated any provision of this chapter, or any order
 issued by the commissioner (iii) because such employee has caused to  be
 instituted  or  is  about  to institute a proceeding under or related to
 this chapter, or (iv) because such employee has provided information  to

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03487-10-2
              

 A. 8092--B                          2
 
 the commissioner or his or her authorized representative or the attorney
 general,  or  (v)  because  such  employee  has testified or is about to
 testify in an investigation or proceeding under this  chapter,  or  (vi)
 because  such  employee  has  otherwise exercised rights protected under
 this chapter, or (vii) because the  employer  has  received  an  adverse
 determination  from  the  commissioner involving the employee, OR (VIII)
 BECAUSE SUCH EMPLOYEE HAS USED ANY LEGALLY PROTECTED ABSENCE PURSUANT TO
 FEDERAL, LOCAL, OR STATE LAW.
   An employee complaint or other communication need  not  make  explicit
 reference  to  any  section  or provision of this chapter to trigger the
 protections of this section.
   As used in this section, to threaten, penalize, or in any other manner
 discriminate or retaliate against any employee includes; threatening  to
 contact or contacting United States immigration authorities or otherwise
 reporting  or  threatening to report an employee's suspected citizenship
 or immigration status or the suspected citizenship or immigration status
 of an employee's family or household member, as defined  in  subdivision
 two  of section four hundred fifty-nine-a of the social services law, to
 a federal, state or local agency; OR 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, WHICH  MAY
 INCLUDE  BUT NOT BE LIMITED TO FAILURE TO RECEIVE A PROMOTION OR LOSS OF
 PAY.
   § 2. This act shall take effect on the ninetieth day  after  it  shall
 have become a law. Effective immediately, the addition, amendment and/or
 repeal  of  any  rule  or regulation necessary for the implementation of
 this act on its effective date are authorized to be made  and  completed
 on or before such date.