Key Takeaways:

• Gov. Andrew Cuomo signed a law amending the New York Human Rights Law

• Domestic violence victims are now further protected in New York state

• This amendment goes into effect on November 18, 2019

Victims of domestic violence will now be further protected in New York State. Gov. Andrew Cuomo signed a law amending the New York Human Rights Law on August 20, 2019, which expands the already existing protections for domestic violence victims.

Status as Victim of Domestic Violence Defined

The law changes the terminology from “domestic violence victim status” to “status as a victim of domestic violence,” and broadens the definition of the protected class to include a person over the age of 16, that is married or a parent accompanied by his or her minor child or children in situations in which such person or such person’s child is a victim of an act which would constitute a violation of the penal law where such acts:

• Result in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person’s child; and
• Are alleged to have been committed by a family or household member

Unlawful Discrimination Prohibited

It is an unlawful practice for an employer with respect to victims of domestic violence:

• To refuse to hire, employ, bar, discharge, or discriminate against such individual in compensation or in terms, conditions or privileges of employment
• To include in an advertisement, application for employment, or to make an inquiry of an applicant of employment, relating to status as a domestic violence victim (with the exception of making inquiries and obtaining information as it relates to providing victims of domestic violence with reasonable accommodations)
• To refuse to provide a reasonable accommodation to an employee who is known by the employer to be a victim of domestic violence.

Reasonable Accommodations Required

Employers are further required to provide victims of domestic violence a reasonable accommodation in the form of absence from work for a reasonable time, unless such absence would cause an “undue hardship” to the employer. Employers are permitted to require an employee to charge any time off against any leave with pay ordinarily granted, where available, unless otherwise provided for in a collective bargaining agreement or existing handbook or policy. Any absence that cannot be charged may be treated as leave without pay. Employees that take such leave are entitled to continuation of any health insurance coverage provided by the employer, to which the employee is otherwise entitled during any such absence.

Circumstances Justifying Leave

Employees must be afforded a reasonable accommodation in the form of reasonable leave in the following circumstances:

• To seek medical attention for injuries caused by domestic violence, including for a child who is a domestic violence victim
• To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence
• To obtain psychological counseling related to an incident or incidents of domestic violence, including for a child who is a victim of domestic violence, provided that the employee is not the perpetrator of the domestic violence against the child
• To participate in safety planning and taking other actions to increase safety from future incidents of domestic violence, including temporary or permanent relocation
• To obtain legal services, assisting in the prosecution of the offense, or appearing in court in relation to the incident or incidents of domestic violence

Undue Hardship Standard

A determination of whether such an absence will constitute an undue hardship shall include consideration of factors such as:

• 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
• The type of operation in which the business, program or enterprise is engaged, including the composition and structure of the workforce

Leave Notice Requirements

An employee who must be absent from work due to the above mentioned circumstances must provide the employer with reasonable advance notice of the employee’s absence, unless such advance notice is not feasible. If the employee cannot feasibly give reasonable advance notice of the absence, the employee must within a reasonable time after the absence, provide a certification to the employer when requested by the employer.

Certification Requirements

If an employer requires a certification such certification shall 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

Other Considerations

Where an employee has a physical or mental disability resulting from an incident or series of incidents of domestic violence, such employee shall be treated in the same manner as an employee with any other disability, pursuant to the provisions of this section, which provide that discrimination and refusal to provide reasonable accommodation of disability are unlawful discriminatory practices. To the extent allowed by law, employers shall maintain the confidentiality of any information regarding an employee’s status as a victim of domestic violence.

Effective Date

This amendment goes into effect on November 18, 2019.

Goldberg Segalla advises employers to revisit their employment handbooks and leave policies to make sure they are compliant with state and federal law. Employers should also train managers on this amendment.

For more information, please contact:

• Caroline J. Berdzik
• Peter J. Woo
• Christopher P. Maugans
• Kristin Klein Wheaton
• Or another member of our Employment and Labor practice