New Law Mandates NYC Employers Allow Temporary Schedule Changes
As of July 18, 2018, employers in New York City must allow their workers up to two temporary schedule changes per calendar year for certain qualifying personal events. These include:
- Providing care to a minor child or care recipient;
- Attending a legal proceeding or hearing for subsistence benefits pertaining to the employee, the employee's family member, or the employee's care recipient; or
- Any circumstance that falls under permissible use of sick time or safe time, as defined by the New York City Earned Safe and Sick Time Act.
The New York City Council enacted the work schedule change law in January.
The circumstances of the industry and type of job may preclude certain types of requests. Employers may offer alternative solutions to schedule-change bids that fit individuals' positions.
Under the new law, employees needing a schedule change must notify their employer or supervisor promptly, indicating that the request arises from a personal issue. They should also suggest the desired schedule adjustment unless they seek unpaid leave. Employees may make the initial request verbally, although the employer must receive a written submission by the second business day after the individual returns to work following the temporary schedule change. The written request must indicate the date for which the change was sought and that it was due to the employee’s personal event.
With few exceptions, employers must grant such requests twice per calendar year, for up to one business day per request (though if the employee uses two business days for one request, the employer need not grant a second request in that calendar year).
The law directs employers to respond to employee schedule change requests immediately, but need not put their initial response in writing. Also, as soon as practicable, and no later than 14 days after the employee submits a request in writing, the employer must provide a written response, which may be in electronic form if such form is easily accessible to the employee. An employer’s written response must include:
- Whether the employer will agree to the temporary change to the work schedule in the manner requested by the employee, or will provide the temporary change to the work schedule as leave without pay, which does not constitute a denial;
- If the employer denies the request for a temporary change to the work schedule, an explanation for the denial; and
- How many requests and how many business days pursuant to this subchapter the employee has left in the calendar year after taking into account the employer’s decision contained in the written response.
Law exempts some workers
The schedule change law does not apply to certain employees:
- Those covered by a valid collective bargaining agreement if the agreement waives the employee’s rights under this law and addresses temporary changes to work schedules;
- Those who have been employed by the business fewer than 120 days;
- Those who work in the development, creation or distribution of theatrical motion pictures, televised motion pictures, television programs or live entertainment presentations (except employees whose primary duties entail the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, and except employees whose primary duties entail performing routine mental, manual, mechanical or physical work in connection with the care or maintenance of an existing building or location used by the employer); or
- Those who work fewer than 80 hours in the city in a calendar year.
Employers that violate the new law could face fines of up to $500 per incident.
Overlap between new schedule change law and earned sick time law
The intersection between the temporary schedule change law and New York City's Earned Sick and Safe Time Act is unclear. As the Society for Human Resource Management (SHRM) notes, "the Earned Sick Time Act itself permits employees, in lieu of using sick or safe time provided under the Act, and upon mutual consent with their employer, to work additional hours within a specified period of a qualifying absence — in other words, to make a temporary schedule change instead of using sick or safe leave."The ordinance indicates it would not affect leave granted under the city’s earned sick and safe time act.
The requirements of the temporary schedule change law could increase costs for New York City businesses already burdened by scheduling regulations. Employers should review their current policies and make adjustments accordingly.