Domestic Violence Victims Now Protected Under NY Human Rights Law

Domestic Violence Victims Now Protected Under NY Human Rights Law

Domestic 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.”

New Domestic Violence Protections for NY Employees

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.

Reasonable Accommodations for Domestic Violence Victims

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:

• Seek medical attention for injuries caused by domestic violence, including for a child who is the victim of domestic violence;
• Obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence;
• Obtain psychological counseling related to an incident or incidents of domestic violence, including for a child who is the victim of domestic violence;
• Participate in safety planning or other action taken to increase safety from future incidents of domestic violence, such as temporary or permanent relocation; or
• Obtain legal services, assist in the prosecution of an offense, or appear in court related to an incident of domestic violence.

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:

• A police report indicating that the employee or his or her child was a victim of domestic violence;
• A court order protecting or separating the employee or his or her child from the perpetrator of an act of domestic violence;
• Other evidence from the court or prosecuting attorney that  the employee appeared in court; or
• Documentation from a  medical professional, domestic violence advocate, health care provider, or counselor that the employee or his or her child was undergoing counseling or treatment for physical or mental injuries or abuse resulting in victimization from an act of domestic violence.

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.

Next Steps for NY Employers

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 questions, please contact us

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.