Most New York City employers are probably familiar with the Fair Workweek Law that went into effect Jan. 1, 2018, but surely not all New York City employers are. That is likely because until now, that law applied only to fast-food restaurants and retail employers. But all that will change come July 18, 2018, when an amendment to the Fair Workweek Law, which added – with little to no fanfare – a Subchapter 6 to the tail end of the legislation, will come into effect. That subchapter creates obligations under the law for all New York City employers, with few exceptions, but the obligations are limited to accommodations for “personal events.”
Specifically, effective July 18, 2018, New York City employers will be required to grant employees two temporary changes to their work schedule when those requests relate to (1) the need for a caregiver to provide care to a minor child or a care recipient; (2) 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 (3) any reason that is permitted under the New York Earned Sick and Safe Time Act (ESTA). These three reasons are referred to as a “personal event.”
Employees may receive the temporary schedule change for up to one business day per request. To be clear, employers are required to accommodate only changes to two business days, so if one request affects two days, an employer is not required to accommodate another request.
An employer may accommodate an employee’s request for a schedule change through paid time off, working remotely, swapping or changing work hours, and using unpaid leave.
In order to request such an accommodation, an employee must notify his or her supervisor as soon as he or she becomes aware of the need for the accommodation, and the employee must make the request in writing no later than the second business day the employee returns from the schedule change. Employers are then required to respond immediately and also must respond in writing no later than 14 days after the request.
Employers may deny a request only if (1) the employee has already used his or her two requests/business days, (2) the employee is covered by a collective bargaining agreement that waives the provisions of the law and itself addresses temporary changes to work schedules, (3) the employee has been employed for less than 120 days, or (4) the employee works less than 80 hours per calendar year in New York City.
Employees are not required to use ESTA leave prior to requesting a temporary schedule change, nor does any unpaid leave granted under this law count toward ESTA-mandated leave. These accommodations are in addition to the benefits provided to employees under ESTA.
The statute strictly prohibits retaliation for employees exercising, or attempting to exercise, any right provided by this law.
In advance of this law going into effect, employers should review and amend their applicable policies to ensure this new law is addressed and should train their managers and supervisors regarding this new law. If you need assistance with reviewing and amending your policies in light of this new requirement, or if you have any questions about this new law, BakerHostetler’s New York Employment Group, led by Amy J. Traub, is available to help.