Scarinci Hollenbeck, LLC
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Author: Scarinci Hollenbeck, LLC
Date: October 4, 2019
The Firm
201-896-4100 info@sh-law.comDomestic violence victims will soon be considered a protected class under the employment provisions of the New York Human Rights Law (NYHRL). Gov. Andrew Cuomo signed legislation amending the law on August 20, 2019, and it takes effect on November 18, 2019.
“Victims of domestic violence are forced to deal with far-reaching, lasting ramifications that can understandably interfere with their work schedules,” Governor Cuomo said in a press statement. “By signing this measure into law we are strengthening our nation-leading domestic violence protection laws and ensuring survivors never have to fear losing their job as they deal with the aftermath of these unthinkable traumas.”
The new law (A5618/S1040) expressly provides: “It shall be an unlawful discriminatory practice for an employer or licensing agency, because of any individual’s status as a victim of domestic violence, to refuse to hire or employ or license or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.” In addition, it will be a discriminatory practice to print or circulate a statement, advertisement, or publication that expresses any limitation, specification, or discrimination about someone’s status as a victim of domestic violence; or use an employment application or make an employment inquiry that expresses any limitation, specification, or discrimination about someone’s status as a victim of domestic violence.
A “victim of domestic violence” is defined as any person who is older than 16, married, or a parent accompanied by the parent’s minor child in a situation where the person or their minor child is the victim of an act committed by a family or household member that would violate the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation. Under the definition, the act must have resulted in actual physical or emotional injury or created a substantial risk of physical or emotional harm to the person or their child.
Under the amendments of the NYHRL, an employer is required to provide reasonable accommodation to an employee who is a victim of domestic violence who must be absent from work for a reasonable time. Employees may take reasonable time off to:
Reasonable accommodations are required unless the employer can demonstrate that the employee’s absence would constitute an undue hardship to the employer. Factors considered in determining whether such an absence will constitute an undue hardship shall include: (i) The overall size of the business, program or enterprise with respect to the number of employees, number and type of facilities, and size of budget; and (ii) The type of operation in which the business, program or enterprise is engaged, including the composition and structure of the workforce. An employer may require an employee to charge any time off against any paid leave ordinarily granted unless otherwise provided for in a collective bargaining agreement or existing employee handbook or policy. Any such absence that can’t be charged may be treated as leave without pay.
In terms of advance notification, A5618/S1040 provides that workers must provide the employer with reasonable advance notice of the employee’s absence, when feasible. When an employee can’t feasibly give reasonable advance notice of the absence, he or she must, within a reasonable time after the absence, provide a certification to the employer when requested by the employer. Such certification must be in the form of:
Finally, A5618/S1040 provides that employers must maintain the confidentiality of any information regarding an employee’s status as a victim of domestic violence to the extent allowed by law.
New York employers should revise their handbooks and manuals to include domestic violence victims as a protected class. Employee leave policies and procedures should also be amended to reflect the new reasonable accommodations required under the law. To avoid unintended liability, we encourage employers to contact a member of the Scarinci Hollenbeck Labor & Employment Law Group.
If you have any questions or if you would like to discuss the matter further, please contact me, Liana Nobile, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.
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