September 06, 2019 Amendments to State Law Regarding Victims of Domestic Violence
KEEPING YOU INFORMED…
We are writing to inform you of recent amendments to the New York State Human Rights Law (“NYSHRL”) regarding victims of domestic violence, which will take effect on November 18, 2019. The key changes to the law are set forth below.
The NYSHRL 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 a situation in which: (a) the person or the person’s child is a victim of an act that 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; and (b) the act or acts (i) resulted in actual physical or emotional injury or created a substantial risk of physical or emotional harm to the person or the person’s child; and (ii) are or are alleged to have been committed by a family or household member.
Leaves of Absence for Victims of Domestic Violence
An employer will be required to provide an employee whom the employer knows is a victim of domestic violence with an unpaid leave of absence as a reasonable accommodation when the employee must be absent from work for a reasonable time for one of the following reasons:
- To seek medical attention for injuries caused by domestic violence, including injuries sustained by a minor child (provided that the employee is not the perpetrator of the violence against the child);
- 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 minor child (provided that the employee is not the perpetrator of the domestic violence against the child);
- To participate in safety planning or other actions to increase safety from future incidents of domestic violence, including temporary or permanent relocation; or
- To obtain legal services, assist in the prosecution of the offense or to appear in court in relation to the incident or incidents of domestic violence.
The employer may require the employee to use accrued paid time off, where available, unless otherwise provided for in an employment agreement, collective bargaining agreement, employer policy or handbook. If the employee receives health insurance coverage, the employer must continue this coverage during the leave of absence.
The employee must provide the employer with “reasonable advance notice” of the need for a leave of absence. If it is not feasible for the employee to do so, he or she will be required to provide the employer with a certification in one of the following forms within a “reasonable time” after the leave of absence:
- 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 providing that the employee or his or her child underwent counseling or treatment for physical or mental injuries or abuse due to an act of domestic violence.
The employer does not need to provide the employee with time off if it can demonstrate that doing so would cause an “undue hardship.” This determination must be based upon, at a minimum, the following factors: (a) the overall size of the business with respect to the number of employees, number and type of facilities and budget; (b) the nature of the employer’s business; and (c) the composition and structure of the workforce.
Prohibited Discrimination and Inquiries
The law provides that it will continue to be an unlawful discriminatory practice for an employer or licensing agency to refuse to hire, employ or license or to bar or to discharge from employment an individual because of the individual’s status as a victim of domestic violence. Employers will also continue to be prohibited from discriminating against a victim of domestic violence in compensation or in other terms, conditions or privileges of employment.
Employers and employment agencies will now be prohibited from printing or circulating any statement, advertisement, publication or employment application or from making any inquiry in connection with prospective employment that directly or indirectly expresses any limitation, specification or discrimination as to status as a victim of domestic violence. An employer may, however, inquire about, or obtain information for the purpose of, providing assistance to or a reasonable accommodation (e.g., the leave of absence described above or a reasonable accommodation for an employee with a disability) to a victim of domestic violence.
Employees with a Disability
Where an employee has a physical or mental disability as a result of an act of domestic violence, the employer must treat that employee as it would any other employee with a disability including, but not limited to, complying with applicable State and federal laws.
To the extent permissible by law, an employer must maintain the confidentiality of any information regarding an employee’s status as a victim of domestic violence.
In anticipation of the November 18, 2019 effective date for all of these changes, we recommend that you review and, where necessary, update all applicable policies, employee handbooks, employment applications and employment agreements to ensure that they are in compliance with the law. In addition, you should determine whether any provisions in your collective bargaining agreements need to be amended to reflect these changes.
If you have any questions regarding this legislation, or would like assistance in reviewing or amending any applicable documents or agreements, please contact Lauren Schnitzer or any of our other attorneys by calling 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2019