New York City’s Temporary Schedule Change Law (the “Law”) (which became effective July 18, 2018) requires employers to allow employees who have been employed at least four months and have worked at least 80 hours in New York City during the past year, to make changes to their work schedules on two occasions during a calendar year. The Law calls these changes in work schedule “temporary changes,” which can be used for covered “personal events.” Although the Law itself sounds simple, there are some complicated requirements for requesting and approving a temporary change for a personal event, which are explained below.
For reference, the New York City Department of Consumer Affairs (“DCA”) (which is tasked with enforcing the Law) has recently published FAQs here and a summary of the law for employers and employees here.
What Are Temporary Changes And Personal Events?
Under the Law:
- A Temporary Change is “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.”
- A Personal Event” means: (i) care for a minor child for whom the employee provides direct and ongoing care; (ii) care for an individual (“care recipient”) with a disability for whom the employee provides direct and ongoing care to meet the needs of daily living and who is a family member or who resides in the caregiver’s household; (iii) attendance at a legal proceeding or hearing for public benefits for the employee, a family member, or the employee’s minor child or care recipient; and (iv) any circumstance that would constitute a basis for permissible use of safe time or sick time under NYC’s Paid Safe and Sick Leave Law (“Sick Leave Law”).
How Can An Employee Request A Temporary Change?
An eligible employee seeking a temporary schedule change must notify his/her employer or direct supervisor as soon as the employee becomes aware of the need for a temporary schedule change due to a personal event. A temporary schedule changes may be taken either in two separate one-day increments, or in a single two-day increment.
The employee must also make a proposal for the temporary change to his/her work schedule, unless the employee seeks unpaid leave. While the initial request for a temporary schedule change may be made orally, the employee must submit the request in writing as soon as practicable (and in any event, no later than the second business day after returning to work), detailing the date for which the change was requested and that it was due to a personal event. The employee, however, is not required to submit documentation of the qualifying personal event.
What Are The Employer’s Obligations Under The Law?
The employer must respond to an employee’s request immediately, but has up to 14 days to respond in writing to an employee’s written request for a temporary schedule change. The employer’s response must include: (i) whether the employer agrees to the temporary schedule change, as requested by the employee, or will provide the temporary change to the work schedule as leave without pay, which does not constitute a denial; (ii) an explanation for the decision if the employer denies the request; and (iii) the number of requests and business days the employee has left to use for purposes of a temporary schedule change. An employer may deny the request only “if the employee has already exhausted the two allotted requests in the calendar year,” or if an exemption applies.
Employers are prohibited from retaliating against employees for requesting schedule changes under the Law, even if the employees have already exhausted their entitlement to a schedule change.
What Employees Are Excluded?
The Law does not apply to government employees, employees covered by a collective bargaining agreement that waives the provisions of the Law and addresses temporary changes to work schedules, or certain employees in the motion picture, television and live entertainment industries.
How Does The Law Interact With The Sick Leave Law and Other Laws?
The Law operates independently of the Sick Leave Law. Thus, an employee does not need to use leave accrued under the Sick Leave Law, nor does leave granted under the Sick Leave Law satisfy an employer’s obligation under the Law. Similarly, unpaid leave for a personal event under the Law does not satisfy an employer’s obligation under the Sick Leave Law. The Law does not impact an employer’s obligation to provide a reasonable accommodation in the form of a change to a work schedule required pursuant to other laws.
What Are The Notice And Recordkeeping Requirements?
The Law requires employers to conspicuously post a notice entitled “You Have a Right to Temporary Changes to Your Work Schedule,” a model of which can be accessed here. The notice must be posted “in English and in any language that is the primary language of at least 5 percent of the workers at a workplace.”
Employers must maintain records relating to their compliance with the Law for three years.
What is the Law’s Enforcement Mechanism?
Employees who believe their rights under the Law have been violated can file a complaint with the DCA’s Office of Labor Policy & Standards (“OLPS”), which will investigate and try to resolve the complaint. OLPS can submit the dispute for a hearing before an administrative law judge. Alternatively, employees can file an action in court.
What Should Employers Do Now?
It is important that employers train their supervisors about this new law, so that they are aware of their obligations if an employee requests a temporary schedule change. Further, employers should prepare a written policy that is compliant with the Law so that HR and management understand an employee’s rights under the Law and can refer back to the policy to ensure compliance. Finally, employers should post the required notice as soon as possible.