On August 20, 2019 New York State amended its Human Rights Law to provide victims of domestic violence with greater protections in the workplace. This amendment, which has an effective date of November 18, 2019, provides domestic violence victims with greater protections against discrimination and also requires employers to provide “reasonable accommodations” to workers who have experienced domestic violence.
The following is a summary of these recent changes, and an overview of what employers need to know in order to prepare for and comply with the new requirements.
Who is Protected by This Law?
While the current law already prohibits employers from discriminating against employees who have experienced domestic violence, this new amendment broadens the definition of “victim of domestic violence” to comport with the definition contained in the NYS Domestic Violence Prevention Act. That law defines a victim of domestic violence as “any person over the age of 16, any married person or any 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, 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, strangulation, identity theft, grand larceny or coercion” where the “act or acts have resulted 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 “such act or acts are or are alleged to have been committed by a family or household member.”
What Does the Law Prohibit?
The law makes it an unlawful discriminatory practice to:
- Refuse to hire or terminate someone because they are a victim of domestic violence;
- Terminate someone because they are a victim of domestic violence;
- Discriminate against a victim of domestic violence with respect to compensation, or terms, conditions, or privileges of employment;
- Print or circulate a statement, advertisement, or publication that discriminates and/or expresses any limitation about someone’s status as a victim of domestic violence; or
- Use an employment application or make an employment-related inquiry that expresses any limitation, specification or discrimination about someone’s status as a victim of domestic violence.
What Reasonable Accommodations are Required?
Employers are required to provide employees who are victims of domestic violence with reasonable accommodations, unless doing so would present an “undue hardship” to the employer and its business. Reasonable accommodations include time off in order to:
- Seek medical attention for injuries caused by domestic violence to the employee and/or the employee’s child;
- Obtain services from a domestic violence shelter, program, or rape crisis center;
- Seek psychological counseling for the employee and/or the employee’s child due to a domestic violence incident;
- Participate in safety planning or take other actions to increase safety for the employee and/or the employee’s child; or
- Obtain legal services, assist in the prosecution of an offense, or appear in court proceedings related to the domestic violence incident.
Employees are required to provide reasonable advance notice of the need for an accommodation if same is possible. For example, an employee would be expected to provide notice of the need to attend a court proceeding scheduled months in advance, but not to seek medical attention for injuries sustained the previous evening.
Time off may be counted against any paid time off the employee has accrued. If the employee has no such accrued time (e.g. paid sick and safe leave time for New York City employers; vacation time; etc.), the time need not be paid, though employers may obviously choose to do so voluntarily.
With respect to employer refusals based upon undue hardship, all such refusals should be carefully considered, preferably with the assistance of counsel, and based upon a compelling business reason. The fact that the employer will be inconvenienced is neither a compelling nor valid reason, nor is the fact that the employee may have already taken too much time off. An invalid reason will be regarded as a violation of the law, and like any other violation of the Human Rights Law (which, in addition to discrimination based upon domestic violence victim status protects against discrimination against race, color, creed, national origin, sex, age, disability, sexual orientation, marital status, military status and predisposing genetic characteristics), there are potent penalties for violations.
Summary
We strongly recommend that managers and supervisors be brought up to speed with respect to these changes to the law. Domestic violence is no laughing matter, and while most employers will bend over backwards to help an employee who has experienced such violence, there is always the risk that an ill-informed managerial or supervisory employee ignorant of the law’s requirements will improperly handle an accommodation request. It is your company that will ultimately pay the price should that occur.
As always, we recommend that should you have questions regarding compliance with this or any other law, those questions should be discussed with your attorneys, PEO and/or other advisors.
