December 12, 2007 New Legislation Regarding Leaves of Absence for Blood Donations and Nursing Mothers
KEEPING YOU INFORMED…
We wish to make you aware of the following recent amendments to New York law that may affect your obligations towards your employees.
1. Leave of Absence for Blood Donation
In response to New York’s blood shortage, a new law will become effective on December 13, 2007. It will require certain employers to grant three hours of leave in any 12 month period to an employee who seeks to donate blood. The leave of absence may not exceed three hours, unless otherwise agreed to by the employer.
Covered employers are those which employ 20 or more employees in at least one site and include individuals, corporations, partnerships, associations, nonprofit organizations, groups of persons, the State, counties, towns, cities, school districts, public authorities and other governmental subdivisions of any kind. Covered employees are those who perform “services for hire for an employer, for an average of 20 or more hours per week,” who are not independent contractors.
The law is expected to be amended in the near future to require the employer to select between the following two options in granting the leave: (1) grant three hours of leave in any 12 month period to a covered employee who seeks to donate blood; or (2) without use of accumulated leave time, allow covered employees to donate blood during work hours at least two times per year at a convenient time and place set by the employer, including permitting employees to participate in a blood drive at the employer’s place of employment.
Although the law does not specify whether these leaves must be with pay, it is our opinion that they must be, and that employers may not charge accruals for time spent on leave.
2. Leave of Absence for Cancer Screening
A law which became effective August 2, 2007 entitles an employee of any municipality or school district to take a leave of absence “for a sufficient period of time, not to exceed four hours on an annual basis, to undertake screening for breast cancer.” The same law also extends that right to employees who wish to undergo screening for prostate cancer.
These leaves of absence cannot be charged against any leave to which the employee is entitled, and it is our opinion that the leave must be with pay.
The New York State Civil Service Commission issued two policy bulletins in connection with pre- existing laws that provided leave for cancer screenings to state and county employees. While not dispositive of how the new law will be interpreted, we believe that they are on point and thus entitled to deference. These documents clarify that: (1) the leave is paid leave (without charge to leave credits); (2) the leave is not cumulative and expires at the close of business on the last day of each calendar year; (3) the benefit, for breast cancer screening, is available to both male and female employees (the benefit for prostate cancer screening is only for male employees); (4) travel time is included in the four hour cap; (5) absence beyond the four hour cap must be charged to leave credits; (6) the entitlement to leave is for screenings scheduled during the employees’ regular work hours (employees are not entitled to compensatory time for screenings outside the regular work schedule); and (7) the employer may require satisfactory medical documentation that the employee’s absence was for the purpose of the cancer screening. In addition, based upon conversations with Civil Service, advance notice of the need for leave would be expected, as would be the case for any non-emergency foreseeable leave.
3. Nursing Mothers Granted Right to Express Breast Milk at The Workplace
Another new law, which became effective on August 15, 2007, requires employers to either provide “reasonable” unpaid break time, or permit the employee to use paid break or meal time each day, for the purpose of expressing breast milk for her nursing child for up to three years following child birth. Employers must make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can express milk in privacy. Employers may not discriminate in any way against an employee who chooses to express breast milk in the work place. Although the law is unclear on the point, it appears as though it is intended to apply to both private and public sector employers, and we recommend that you proceed with that assumption until the State issues clarifying regulations.
If you have any questions about any of these new laws, please do not hesitate to contact us.
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, 2007