Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Enacted this past January, New York City’s “Temporary Schedule Change” law becomes effective on July 18, 2018.1 The law provides employees with the right to request two temporary schedule changes per calendar year for “personal events,” and employers must ensure that they are prepared to respond to their employees’ requests for changes in work schedules and understand what types of personal events qualify for leave.
The types of schedule changes that employees can requests include: (a) a limited alteration in employee’s scheduled hours; (b) a temporary alteration to the location where an employee is expected to work; (c) using paid time off; (d) permission to work remotely; (e) permission to swap shifts with another employee; and (f) permission to use short-term unpaid leave.
The law sets forth the type of “personal events” that qualify for leave under this law. Specifically, employees can request a temporary schedule change if any of the following circumstances arise:
- the need for a person to provide “care” to a minor child or a person with a disability who is either (a) a family member or a person who resides in the caregiver’s household AND (b) who relies on the caregiver for medical care or to meet the needs of daily living;
- the need to attend a legal proceeding or hearing for subsistence benefits to which the employee, a family member, or a person with a disability who is either (a) a family member or a person who resides in the caregiver’s household AND (b) who relies on the caregiver for medical care or to meet the needs of daily living is party;
- any circumstance that would constitute a basis for permissible use of safe or sick time, including:
- the employee is suffering from a mental of physical illness, injury, or health condition;
- the employee needs to receive a medical diagnosis, medical care, or medical treatment of a mental or physical illness injury or health condition;
- the employee needs to obtain preventive medical care;
- the employee needs to care for a family member who needs medical diagnosis, care, or treatment of a medical or physical illness or who needs preventive medical care;
- closure of the employer’s business by a public official due to a public health emergency;
- need to care for a child due to a closure of a school or childcare provider that has been closed by a public official due to a public health emergency;
- when the employee or the employee’s family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking and needs to (a) obtain services from a domestic violence shelter, rape crisis shelter, or other shelter or services program; (b) participate in safety planning, temporarily or permanently relocate, or take action to increase the safety of the employee or the employee’s family member from future family offense matters; (c) meet with an attorney or social service provider to obtain information or advice on, and prepare for or participate in, any criminal or civil proceeding related to the family offense matter; (d) file a complaint or domestic incident report with law enforcement; (e) meet with the district attorney’s office; (f) enroll children in a new school; or (g) take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee's family member or to protect those who associate or work with the employee.
All employees who have worked for an employer for 120 days and have logged 80 hours of work in New York City are eligible to seek temporary schedule changes under the law. The only industry exempted is the motion picture industry. The law also provides a carve out for those employers that have entered into a collective bargaining agreement explicitly waiving the provisions of this law and addressing temporary changes to work schedules.
It is also important to note that leave permitted under this law takes priority over leave permitted under the New York City Earned Sick and Safe Time Act (ESSTA) and an employee does need not use leave accrued under ESSTA before requesting schedule changes under this law.
Employers with operations in New York City should review their paid time off policies to ensure that they do not contradict any provision within the temporary scheduling law. Employers should also consider training managers and human resources personnel (or those employees involved in scheduling) to ensure they understand the law and what requests for scheduling changes qualify under the law. Furthermore, employers should consider developing, if they have not done so already, tracking mechanisms to monitor the number of requests an employee makes and when such requests are made.
1 For a complete summary of the law, including employee notification requirements, who the law does not apply to, and penalties for violations of the law, see Neta Levanon and Eli Freedberg, The New York City Council Continues To Pass Laws Granting Employees The Power To Dictate Their Schedules, Littler Insight (Jan. 30, 2018).