NYC to Require Employers to Grant Temporary Schedule Changes for Personal Events

Effective July 18, 2018, New York City employers will be required to allow employees who have been employed for at least 120 days and who work at least 80 hours in New York City in a calendar year to make two (2) temporary schedule changes per year for certain personal events.

Introduction No. 1399-2016 (commonly referred to as the “Fair Workweek Law”) requires employers to grant qualifying New York City employees temporary schedule changes to:

1. Provide care for a minor child or other care recipient;
2. Attend a legal proceeding or hearing for benefits for the employee, the employee’s family member or the employee’s care recipient; or
3. Attend to any circumstance that would constitute a basis for leave under New York City’s Earned Sick and Safe Time Act (“Sick Time Act”).

The Fair Workweek Law considers a “temporary schedule change” to be a limited alteration to the hours, times or location the employer is otherwise expecting the employee to work. Some examples include using paid time off, working remotely, swapping or shifting work hours, or using short-term unpaid leave.

Employer Obligations

The Fair Workweek Law requires employers to grant temporary changes two (2) times per calendar year for up to one (1) business day per request. If an employer permits an employee to use two (2) business days for one (1) request, granting a second request is not required. An employer may deny a request for a temporary change relating to a personal event only if the employee has already exhausted the two (2) allotted requests in the calendar year or is otherwise exempt from the law (i.e., the employee is not a covered employee or is covered by an existing collective bargaining agreement).

An employee wishing to make a temporary schedule change must notify the employer or the employee’s direct supervisor as soon as the employee becomes aware of the need for the change. The employee must also advise his or her supervisor or employer of the qualifying personal event relating to the temporary schedule change. The employee’s initial request does not need to be in writing, however within two (2) business days after returning to work, the employee must provide a written request. The request must identify the request is due to a personal event and identify the date for which the change was requested.

The employer must submit a response as soon as practicable, but no later than fourteen (14) days after the employee submits his or her written request. The employer’s response must state in writing:

1. Whether the employer agreed to the temporary change in the manner requested by the employee or would provide the change as leave without pay (which does not constitute a denial);
2. The reason for the denial, if the request was denied; and
3. How many requests and how many temporary changes of work schedules the employee has left in the calendar year, after taking into account the employer’s decision contained in the written response.

Interaction with Other Laws

The Fair Workweek Law does not require employees to use accrued time under the Sick Time Act before requesting a temporary schedule change. Similarly, time taken under the Sick Time Act does not count toward an employer’s obligation to grant leave under the new law. In addition, this new law does not affect an employer’s obligation to provide reasonable accommodations, including modifications to an employee’s work schedule, in accordance with any other law (e.g. the Americans with Disabilities Act).

Next Steps for Employers

In preparation for the Fair Workweek Law’s enactment, employers should review and revise any existing policies and, procedures, and any scheduling and payroll practices, if necessary. Given that the law expressly provides that an employee may give notice for the need for a temporary scheduling change to the employee’s direct supervisor, it is imperative that employers provide training to their managers.