New York City’s temporary schedule change law (Introduction 1399-2016) goes into effect on July 18, 2018 and covers, with limited exception, all employees working 80 hours or more per calendar year in New York City. Under the law, covered employees who have worked for an employer for at least 120 days may request two temporary schedule changes per year for qualifying personal events.

Qualifying Events

As of July 18, 2018, qualifying New York City employees may request a temporary schedule change (1) to provide care for a minor child or other care recipient; (2) to attend a legal proceeding or hearing for subsistence benefits for the employee, the employee’s family member, or the employee’s care recipient; or (3) to attend to any circumstance that would constitute a basis for leave under New York City’s Earned Sick and Safe Time Act (ESSTA).

ESSTA, as most New York City employers already know, provides paid sick leave for an employee’s or an employee’s family member’s qualifying illness, injury, or health condition, as well as for business or school closures due to a public health emergency. As of May 5, 2018, ESSTA also provides paid “safe leave” to seek assistance or take other safety measures where an employee or the employee’s family member may be the victim of any act or threat of domestic violence or unwanted sexual contact, stalking, or human trafficking. (Note: Employers were required to distribute updated ESSTA notices to employees, advising of them of their right to sick and safe leave, by June 4, 2018, in accordance with the recent safe leave amendments.)

Temporary Schedule Change

Under the law, employers generally are required to grant an employee’s request for a temporary schedule change two times per calendar year for up to one business day per request. While an employer may allow an employee to use two business days for one request, it is then not required to grant a second request. Employers may only deny a request for a temporary schedule change if the employee already has used his or her two days 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).

A “temporary schedule change” under the law is a limited alteration to the hours or times that an employee is expected to work, or to the locations where an employee is expected to work. It may include, for example, using paid time off, working remotely, swapping or shifting work hours, or using short-term unpaid leave.

Notice Obligations

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, inform the employer or supervisor that the change is due to a qualified personal event, and propose the temporary change to the work schedule, unless the request is for leave without pay. Although the employee’s initial request need not be in writing, the employee must submit a written request within two business days after returning to work, stating (a) the date for which the change was requested; and (b) that it was due to the employee’s personal event.

When an employer receives an initial request, it must respond to the request immediately, but that response also need not be in writing. As soon as practicable, but no later than 14 days after the employee submits his or her written request, the employer must respond in writing, stating: (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 change business days 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

Under the new law, employees are not required to use accrued time under ESSTA before requesting a temporary schedule change. Similarly, time taken under ESSTA does not count toward an employer’s obligation to grant leave under the new law. An employer’s obligations under this new law do not impact its obligation to provide reasonable accommodations, including to make modifications to an employee’s work schedule, in accordance with any other law.

Next Steps for Employers

Employers should review and revise their existing policies and procedures to comply with the new law, including to establish a procedure for timely response to temporary scheduling change requests in accordance with the law. Given that the law expressly provides that an employee may give notice to the employee’s direct supervisor of the need for a temporary scheduling change, it is imperative that employers provide training to their managers on this new law.

To learn more about how New York City’s temporary schedule change law might affect your business, contact:

• Allison E. Ianni
• Caroline J. Berdzik
• Or another member of the Employment and Labor Practice Group