S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1958
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 16, 2021
                                ___________
 
 Introduced  by  Sen. KRUEGER -- read twice and ordered printed, and when
   printed to be committed to the Committee on Investigations and Govern-
   ment Operations
 
 AN ACT to amend the executive law, in relation to clarifying that  work-
   ers  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.  Legislative  intent.  Too  often,  absence  control,  or
 "no-fault" attendance policies, violate  workers'  rights  in  New  York
 state and discourage them from taking job-protected leave or time off to
 which  they  are  entitled  by  law.  Under  such  policies, workers are
 assessed points (sometimes referred to as "demerits"  or  "occurrences")
 for  each  absence - regardless of the reason - and those points subject
 them to discipline, often including  termination.  Employers  ignore  or
 interfere  with these rights due to ambiguities in the law and their own
 policies and practices. By punishing workers for any absence,  including
 absences  protected by law, absence control policies frequently threaten
 public health and family economic security, and undermine New York state
 workplace rights.    According to A Better  Balance,  which  released  a
 report  detailing  legal concerns with "no-fault" attendance policies in
 June 2020, some of the nation's largest employers maintain policies that
 "reliably fail to inform workers about their legal rights to  take  time
 off  without  punishment  for  certain  illnesses, health conditions, or
 disabilities, or for the need to care for an ill loved one" under state,
 local, and federal civil rights laws. After surveying  the  policies  of
 sixty-six  U.S. employers impacting approximately eighteen million work-
 ers, A Better Balance found that more than 80% of those policies  failed
 to make clear that employees would not receive points for disability-re-
 lated  absences;  many  provided incomplete or misleading information to
 workers regarding their right to time off under the federal  Family  and
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03487-02-1

 S. 1958                             2
 
 Medical  Leave  Act  (FMLA);  and the majority of the policies indicated
 that workers will incur points when they  miss  work  because  they  are
 sick.    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, caregiv-
 ing, and religious needs without penalty.
   § 2. Section 292 of the executive law  is  amended  by  adding  a  new
 subdivision 39 to read as follows:
   39.  THE  TERM  "ABSENCE  CONTROL OR NO-FAULT ATTENDANCE POLICY" SHALL
 MEAN A POLICY MAINTAINED  BY  AN  EMPLOYER  UNDER  WHICH  EMPLOYEES  ARE
 ASSESSED  "POINTS,"  INCLUDING  BUT  NOT  LIMITED TO, DEMERITS OR OCCUR-
 RENCES, FOR EACH ABSENCE, REGARDLESS OF THE REASON FOR SUCH ABSENCE, AND
 THOSE POINTS SUBJECT THE EMPLOYEE TO  PROGRESSIVE  DISCIPLINARY  ACTION,
 INCLUDING,  BUT  NOT LIMITED TO, FAILURE TO RECEIVE A PROMOTION, LOSS OF
 PAY, OR TERMINATION.
   § 3. 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 A KNOWN  DISABILITY,  PREGNANCY-RE-
 LATED  CONDITION,  OR OTHERWISE PROTECTED BY LAW, WITHOUT FIRST ENGAGING
 IN A GOOD FAITH, INTERACTIVE PROCESS TO CONSIDER WHETHER AN EMPLOYEE  IS
 ENTITLED TO A REASONABLE ACCOMMODATION.
   §  4.  Subdivision 1 of section 296 of the executive law is amended by
 adding a new paragraph (j) to read as follows:
   (J)(I) FOR AN EMPLOYER, LABOR ORGANIZATION, OR  EMPLOYMENT  AGENCY  TO
 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 LAW BECOMES EFFECTIVE. THEREAFTER,
 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 IT;
   (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:
   (1) REPORT THAT AN ABSENCE IS  FOR  A  LEGALLY  PROTECTED  REASON  FOR
 LEAVE;
   (2) PROVIDE MEDICAL DOCUMENTATION;
   (3)  SEEK  REMOVAL  OF POINTS OR OCCURRENCES THAT AN EMPLOYEE BELIEVES
 WERE WRONGLY ASSESSED; AND

 S. 1958                             3
 
   (4) PERMIT DELAYED REPORTING OF AN ABSENCE IN UNFORESEEN AND/OR  EMER-
 GENCY CIRCUMSTANCES WITHOUT INCURRING ADDITIONAL POINTS OR DISCIPLINE.
   (II)  THE  DIVISION  OF  HUMAN  RIGHTS  SHALL  DEVELOP A MODEL ABSENCE
 CONTROL POLICY THAT CONFORMS TO THE REQUIREMENTS  OF  THIS  SUBDIVISION.
 THE  DIVISION  SHALL  MAKE SUCH MODEL POLICY AVAILABLE ON ITS WEBSITE IN
 ENGLISH AND SPANISH AND ANY OTHER LANGUAGE  DEEMED  APPROPRIATE  BY  THE
 DIVISION.
   (III)  IF  ANY  EMPLOYER  IS  FOUND  TO MAINTAIN AN ABSENCE CONTROL OR
 NO-FAULT ATTENDANCE POLICY THAT IS NOT COMPLIANT WITH  THE  REQUIREMENTS
 OF THIS SUBDIVISION, 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 SUBDIVISION, THE ATTORNEY GENERAL OR DESIG-
 NEE, 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  SHALL  ADOPT  RULES  AS  NECESSARY  TO  IMPLEMENT THE
 PROVISIONS OF THIS SUBDIVISION.
   § 5. 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.
   § 6. 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.