The New York City Council recently passed a bill that will require employers to grant two temporary schedule changes per calendar year to employees for qualifying “personal events.” The law will take effect on July 18, 2018 and will add to the increasingly complex obligations of employers to track and respond to employee leave requests.
Temporary Schedule Change Required for Personal Event
The temporary scheduling law amends the City’s Fair Workweek Law and requires employers to grant an employee’s request for a temporary change to the employee’s work schedule, including a flexible work arrangement, because of a qualifying “personal event.” A “temporary change” is defined as “a limited alteration in the hours or times that or locations where an employee is expected to work, including, but not limited to, using paid time off, working remotely, swapping or shifting work hours and using short-term unpaid leave.” The law also permits employees to request a change other than the temporary changes set forth above, for which the procedure outlined below applies.
A qualifying “personal event” is defined as (i) the need for a caregiver to provide care to a minor child or care recipient; (ii) an employee’s need to attend a legal proceeding or hearing for subsistence benefits to which the employee, a family member or the employee’s care recipient is a party; or (iii) any circumstance that would constitute a basis for permissible use of safe time or sick time pursuant to New York City’s Earned Sick and Safe Time Act. The law entitles employees to no more than two requests of up to one business day each per calendar year (or one combined request of two days) and sets forth the procedure by which employees and employers must communicate regarding the request, which we outline below.
Procedure for Requesting A Temporary Schedule Change
Employees must notify their employer or direct supervisor as soon as they become aware of the need for a temporary schedule change. The initial request need not be in writing, but it must indicate the proposed schedule change and that the change is needed due to a personal event. The employee must then submit a written request as soon as practicable and no later than the second business day after the employee returns to work indicating the date for which the change was requested and that it was due to an employee’s personal event. This notice may be submitted in electronic form if employees commonly use electronic communication to request and manage leave and schedule changes. If the employee fails to submit the written notice, the employer’s obligation to respond in writing is waived.
An employer must respond immediately when it receives the employee’s initial request, but the response need not be in writing. However, as soon as practicable but no later than 14 days after the employee submits a written request, the employer must provide a written response indicating whether it agrees to the change as proposed or will provide the change as leave without pay (which does not constitute a denial), or if it denies the request, providing an explanation for the denial. The employer’s determination must also indicate how many requests and how many business days the employee has left in the calendar year.
A request must be granted unless the employee has exhausted their two allotted requests or an exemption (as described below) applies. Employees are not required to exhaust accrued sick time under the NYC Earned Sick Time Act before requesting schedule changes, and unpaid leave granted as a temporary schedule change does not count toward the employer’s obligation to provide paid sick time under the Earned Sick Time Act. Further, employers are prohibited from retaliating against employees for requesting a temporary schedule change.
Exemptions from Coverage
The law does not apply to employees who: i) work less than 80 hours per year in New York City; ii) have worked for less than 120 days for the employer; iii) are covered by a CBA that waives coverage and addresses scheduling changes; or iv) who perform manual or non-office work in the motion picture, television, or live entertainment industries. However, the law does not impact or otherwise relieve employers of the obligation to provide reasonable accommodations in accordance with applicable laws to the exempted employees.
Penalties for violations may include compensatory damages and civil penalties payable to the City under the Fair Workweek law, as well an administrative penalty of $500 per violation, payable to the employee. Employers may also be directed to comply with notice posting and record-keeping requirements. If retaliation occurred, an employer may be required to rescind any disciplinary action taken or reinstate a terminated employee with back pay and benefits. An employer who fails to provide an employee with the required written response required may cure the violation without a penalty if it provides the written response within seven days of notice of the opportunity to cure.
This is a further example that New York City, through its City Council, continues to legislate workplace policies impacting employees’ personal obligations and work life balance. The scheduling amendment comes on the heels of the sweeping New York Paid Family Leave law which took effect earlier this year, and not long after the City expressly banned discrimination against caregivers. While the inclusion of caregivers as a category protected from discrimination did not require that they be provided accommodations, this new law effectively closes that loop by requiring employers to accommodate caregivers by allowing them some flexibility in their schedule.
We will be discussing the temporary schedule change requirement, as well as New York Paid Family leave and other leave-related issues, at our annual Employment Law Summit on April 19.