Effective July 18, 2018, New York City (“NYC”) law requires employers to grant employees two temporary schedule changes per year, of up to one business day each, for certain “personal events.” An employer may also allow an employee to use two business days for one request, which would exhaust the employee’s allotted requests for the year. To be eligible for the temporary schedule changes, employees must have been employed for at least 120 days and work at least 80 hours in NYC in a calendar year.
Qualifying Personal Events
Under the law, personal events that entitle an employee to a temporary schedule change include: (i) the employee’s need to provide care for a child under the age of 18 or a disabled individual living in the employee’s home, who relies on the employee for medical care or to meet the needs of daily living; (2) the employee’s need to attend a legal proceeding or hearing for subsistence benefits to which the employee, a family member, or a disabled individual living in the employee’s home, who relies on the employee for medical care or to meet the needs of daily living; or (3) any circumstance that would allow the employee to use safe or sick time under the Earned Safe and Sick Time Act (“ESSTA”).
What is a Temporary Schedule Change?
The law defines a temporary change as a limited alteration in the hours, times, or locations where an employee is expected to work. The law provides the use of paid time off, working remotely, changing the employee’s work hours, swapping shifts with a colleague, and using short-term unpaid leave, as examples of temporary changes. While the law lists these changes, temporary schedule changes are not limited to only the enumerated examples.
Exemptions
Certain employees are exempt from the law. Excluded employees include: (i) employees covered by a collective bargaining agreement which addresses temporary changes to work schedules; (ii) employees who have been employed for fewer than 120 days or do not work at least 80 hours per year in NYC; or (iii) certain employees who are a part of the theater, film or television industry.
Notice Requirement
An employee requesting a temporary schedule change are required to notify their employer or supervisor as soon as the employee becomes aware of the need for a temporary change. The employee is also required to inform the employer or supervisor that the change is needed due to a personal event, and must propose the schedule change they request (i.e., paid time off).
The employee’s initial schedule request does not need to be in writing; however, the employer can require the employee to submit a written request no later than the second business day after the employee returns to work. The written request must indicate the date for which the schedule change was requested and the request must also specify that the change was due to the employee’s personal event.
Employers must respond to employee requests for temporary changes “immediately.” The employer’s initial response need not be in writing, but the employer must provide the employee with a written response no later than 14 days after the employee submits his or her written request. However, if the employee fails to submit a written request, the employer is not obligated to provide a written response.
The employer’s written response must include whether the employer agrees to the requested temporary change in the manner requested by the employee, or if the employer will provide the requested change as unpaid leave, which is not a denial under the law. If the employer denies the employee’s written request, the employer’s written response must explain the basis for the denial. All written responses must include how many temporary schedule change requests the employee has made in the calendar year and how many business days the employee has left in the calendar year.
Interaction with ESSTA
The schedule change law’s requirements are in addition to an employer’s obligations under ESSTA. Employees do not need to use their accrued safe or sick leave under ESSTA before requesting a schedule change. Further, if the employee is granted unpaid leave, such leave does not count towards the employee’s entitlement to leave under ESSTA. Likewise, leave granted under ESSTA does not constitute a schedule change under the new law.
Penalty for Violation
The penalty for each employer violation of the temporary schedule change law is a $500 fine and an order directing compliance with the law.
Takeaway
The NYC Office of Labor Standards has not yet released guidance to clarify employers’ obligations under the new law. In the meantime, employers can implement a temporary schedule change policy and advise managers and supervisors of the new law and its obligations.