Last month was National Prostate Cancer Awareness Month and this month is Breast Cancer Awareness Month. In light of these annual campaigns to increase awareness and prevention of these diseases, we write to remind you of your employees’ rights regarding leaves of absence for cancer screening.

New York law entitles the following employees (male only) to take a paid leave of absence “for a sufficient period of time” of up to four hours on an annual basis for a prostate cancer screening: public officers; State employees; employees of a county, community college, public authority, public benefit corporation, BOCES, school district, municipality; employees of participating employers in the New York State and local employees’ retirement system; and employees of participating employers in the New York State teachers’ retirement system.[1]

The law similarly entitles these employees (both female and male) to take a paid leave of absence “for a sufficient period of time” of up to four hours on an annual basis for a breast cancer screening.

The leave of absence for each screening must be paid excused leave and may not be charged against any other leave for which the employee is otherwise entitled. The New York State Civil Service Commission issued two policy bulletins in connection with a prior version of the law that provided leaves of absence for prostate and breast cancer screenings for State and county employees only. The law was amended in 2007 to provide these leaves of absence to the other categories of public sector employees listed above.

While not dispositive of how the amended law will be interpreted by the courts, we believe that the policy bulletins are on point and thus entitled to deference. The policy bulletins clarify the following with respect to each type of leave of absence: (1) the leaves are not cumulative and expire at the close of business on the last day of each calendar year; (2) travel time is included in each four hour cap; (3) absences beyond each four hour cap must be charged to leave credits; (4) the entitlement to each leave is for screenings scheduled during the employee’s regular work hours (an employee is not entitled to compensatory time for screenings outside the regular work schedule); (5) the employer may require satisfactory medical documentation that the employee’s absence was for the purpose of the cancer screening; (6) prostate cancer screening includes physical exams and blood work for the detection of prostate cancer; and (7) breast cancer screening includes physical exams and mammograms for the detection of breast cancer.

Please let us know if you have any questions regarding these requirements.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2014

[1] The law does not apply to employees of a city with a population of one million or more.