New NYC Law Allows Employees Two Schedule Changes Per Year

Effective July 18, 2018, a new law the New York City Council recently passed Int. 1399-A will require that employers grant employees two temporary schedule changes per year for certain medical and family care purposes.[1]

What Is a “Schedule Change?”

The new law defines a temporary schedule change as “a limited alteration in the hours or times that[,] or locations where[,] an employee is expected to work.” An employer may grant a schedule change by allowing the employee:

• to change the employee’s work hours;
• to use a day of unpaid leave;
• to use employer-provided paid time off;
• to work remotely; or
• to swap shifts with another employee.

Employers will be required to grant an employee’s request for a schedule change either twice per calendar year, for up to one business day per request, or once per calendar year for two business days for a single request. 

Employers are only permitted to deny an employee’s request for a schedule change if the employee has already exhausted the allotted requests in the calendar year or the employee is exempt from coverage under the law, as explained below. There is no provision for denial because it would cause “undue hardship” to the employer.

The two required schedule changes are in addition to the 40 hours (5 days) of paid sick leave employees accrue under the NYC Earned Safe and Sick Time Act (“ESSTA”), so that allowing an employee to use a day of paid sick leave accrued under ESSTA does not satisfy the law. Any paid leave granted in response to a request for a schedule change would be in addition to the paid sick leave the employee accrued under ESSTA.

When Can an Employee Request a Schedule Change?

An employee who works in New York City for at least 80 calendar days per year can, after working for his/her employer for 120 days, request a schedule change:

• to provide care to a minor child or to a family or household member with a disability who requires medical care or assistance with the needs of daily living;
• to attend proceedings to secure subsistence benefits for the employee or a family member; or
• for any of the reasons allowed under the revised NYC ESSTA.

In a separate bill, the NYC Council also recently expanded the reasons for which employees may take paid sick leave under the Earned Sick Time Act, now called the Earned Safe and Sick Time Act; as of May 2018, an employee can now also take a paid sick day when the employee or a family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking.

Are Any Employees Exempt From the Law?

As noted above, employees must work at least 80 days in a calendar year and 120 days for a particular employer before they are permitted to request a schedule change.

The law also does not apply to employees covered by a collective bargaining agreement (“CBA”) that is in effect on July 18, 2018. When that CBA expires, as well as for those being negotiated when the new law goes into effect, the CBA must specifically waive the provisions of the new law and “address” temporary changes to work schedules in order for the employees covered by the CBA to be exempt from the law. The law does not define how the new CBA must “address” temporary schedule changes, nor does it require that the new CBA provide a comparable benefit.

Finally, the law excludes some employees in the entertainment industry, which is defined as employers “whose primary business . . . is the development, creation or distribution of theatrical motion pictures, televised motion pictures, television programs or live entertainment presentations.” The law, however, covers many employees in the entertainment industry because it applies to employees whose primary duty is “office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers” or “routine mental, manual, mechanical or physical work in connection with the care or maintenance of an existing building or location used by the employer.”

Employee Requests and Employer Responses

An employee must notify an employer of a request to make a schedule change as soon as the employee becomes aware of the need for the change, but the initial request does not need to be in writing. If an employee has not put the request in writing before the schedule change occurs, the employees must submit a written request within two days after returning to work. The request must include the employee’s proposal for the schedule change, unless the employee seeks leave without pay.

An employer must provide an immediate response, but need not provide a written response unless the employee’s request is in writing. Once an employee submits a written request, the employer has 14 days to provide a written response granting the request or explaining why it has been denied.  As noted above, the only reasons a request may denied are if the employee is not eligible for a schedule change or the employee has already been granted two schedule changes that calendar year. If time off is granted, the employer’s response must also state whether it is with or without pay.

In addition, the employer’s response also must state the number of schedule change requests the employee has left in the calendar year based on the employer’s decision in the written response. For example, if the employer has granted an employee’s request for one schedule change, the response would state that the employee may make one additional request for a schedule change that year, but if the employer has granted a schedule change on two business days that year, the employer’s response would state that no additional schedule changes may be requested that year.

Employers may not retaliate against employees who request schedule changes.

Unanswered Questions and Future Rules

There are many issues which the law does not address, such as what, if any, documentation an employer may require an employee to provide to support a request for a schedule change, and whether an employee may be disciplined for failing to provide documentation.

The Director of the Office of Labor Standards has the power to promulgate additional rules regarding the implementation of this law before the effective date. We will report on any new developments here.

Please do not hesitate to contact any of our attorneys if you have any questions.

[1] The bill, which was passed by the NYC Council in December 2017, became law on January 19, 2018 after Mayor Bill de Blasio failed to sign or veto it. It amends Chapter 12 of title 20 of the NYC administrative code (commonly referred to as the “Fair Workweek Law”) by adding a new subchapter 6.