New York State Expands Protections to Employees Who Are Victims of Domestic Violence

While New York employers are rushing to comply with the new amendments to New York State’s anti-discrimination and anti-harassment laws, New York State legislators show no signs of slowing down. On Aug. 20, 2019, Governor Andrew Cuomo signed Bill A05618 into law, amending the New York State Human Rights Law (NYSHRL) to grant additional protections to employees who are victims of domestic violence. While the NYSHRL previously barred workplace discrimination against domestic violence victims, the new amendment enumerates prohibited discriminatory practices and requires employers to provide certain accommodations to employees who identify as victims of domestic violence.

Although the NYSHRL already considered domestic violence victims a protected class, the new amendment now expressly prohibits employers from engaging in the following actions based on an employee’s status as a victim of domestic violence: (i) refusing to hire an applicant, (ii) discharging an employee, (iii) discriminating against an employee with regard to compensation or terms and conditions of employment, and (iv) expressing any limitation or discrimination in any printed or circulated statement, advertisement, publication or application, or in the making of any inquiry related to prospective employment.

The foremost implication for employers is the requirement that employees who are victims of domestic violence be provided reasonable accommodations in the form of time off from work. Specifically, employers must allow such employees to be absent from the office for a reasonable amount of time for the following reasons:

• To seek medical attention for an employee’s or child’s domestic violence-related injuries
• To utilize services from a domestic violence shelter, program or rape crisis center
• To obtain psychological counseling for the employee or a child related to a domestic violence incident
• To participate in safety planning, including temporary or permanent relocation
• To obtain legal services, assist in the prosecution of the offense or appear in court in relation to the domestic violence incident

An employee granted any above-referenced accommodation is required to provide an employer with reasonable advance notice. If such advance notice is not feasible, an employee must provide certification to an employer within a reasonable amount of time if so requested. Such certification may be in the form of (i) a police report, (ii) an order of protection, (iii) evidence of a court appearance or (iv) documentation from a medical professional, health care provider, domestic violence advocate or counselor illustrating the employee or the employee’s child underwent treatment related to domestic violence. Employers must keep confidential any information regarding an employee’s status as a victim of domestic violence to the extent permissible by law. Additionally, employees are entitled to the continuation of health insurance coverage while utilizing a reasonable accommodation under the new amendment.

The law provides certain considerations for employers. Employers are not obligated to provide the above-referenced reasonable accommodations if the employer can demonstrate that the employee’s absence would constitute an undue hardship on the business. Additionally, the law does not require that employees be paid when taking leave as a domestic violence-related reasonable accommodation. If an employer grants a reasonable accommodation, the employee may be required to take any available paid time off or otherwise take unpaid leave. Further, the state’s new law may have little practical impact on New York City employers, as the Earned Safe and Sick Time Act already requires city employers to provide limited paid time off from work for victims of domestic violence. Once the law goes into effect, city employers may require employees to take paid time off pursuant to the Earned Safe and Sick Time Act for a domestic violence-related reasonable accommodation.

The new amendment becomes effective on Nov. 18, 2019. Employers should consider updating their handbooks and policies to address domestic violence-related reasonable accommodations and train human resources personnel on the new amendment’s requirements.

For questions or concerns regarding compliance with Bill A05618, please contact a member of Kramer Levin’s Employment Department.