The legal updates keep coming for New York employers.

Under another recently signed amendment, victims of domestic violence will be entitled to expanded protections under the New York Human Rights Law. The amendment goes into effect on November 18, 2019.

Discrimination Against Victims of Domestic Violence Prohibited

Employers will no doubt recognize that the Human Rights Law already bans discrimination against victims of domestic violence. The amendment, however, spells out and prohibits specific discriminatory actions. The amendment states that employers may not:

• Refuse to hire or discharge an individual based on an individual’s status as a victim of domestic violence;
• Discriminate in compensation or privileges based on an individual’s status as a victim of domestic violence;
• Use any job application form or job posting that expresses any “limitation, specification, or discrimination” against individuals’ status as a victim of domestic violence
• Use any job application form or job posting that inquires about the individual’s status as a victim of domestic violence, unless the employer inquires for the “purpose of providing assistance to” the individual.

Reasonable Accommodation Leave for Victims of Domestic Violence

The amendment also adds new requirements concerning employers’ obligation to reasonably accommodate employees who have been victims of domestic violence and need to take time off from work. Unless it would cause undue hardship, employers will be required to allow employees to take time off for:

• Seeking medical attention for injuries caused by domestic violence
• Obtaining services from a domestic violence shelter or rape crisis center
• Obtaining psychological counseling related to an incident of domestic violence, including psychological counseling for a child who has been a victim of domestic violence
• Participating in safety planning or “taking other actions to increase safety from” future incidents of domestic violence, such as “temporary or permanent relocation” and
• Obtaining legal services or assisting prosecutors in relation to an incident of domestic violence.

Leave May Be Charged to Accrued Paid Time Off

The amendment allows employers to charge any such time off to the employee’s accrued leave balances, such as vacation time or personal time. If the employee does not have any accrued time, the leave may be unpaid.

Whether Leave Would Constitute Undue Hardship

As to whether an employee’s absence would cause an undue hardship, the law will require employers to examine a number of factors:

• The overall size of the employer’s business, program or enterprise with respect to the number of employees, number and type of facilities, and size of the employer’s budget;
• The type of operation that the employer is engaged in, including the composition and structure of its workforce.

Notice and Certification of Leave

Employees who require leave for the above reasons will be required to provide “reasonable advance notice” to their employer, unless providing advance notice is not feasible. If providing advance notice is not reasonable under the circumstances, employers may require the employee to provide “certification” of their need for leave. Certification can consist of:

• A police report indicating that the employee or the employee’s child was the victim of domestic violence
• A court order protecting or separating the employee or their child from the perpetrator
• Other evidence from a court or from a criminal prosecutor proving “that the employee appeared in court”
• Documentation from a medical professional, domestic violence advocate, health care provider, or counselor, that the employee or the employee’s child was undergoing counseling or treatment related to an act of domestic violence

Steps to Ensure Compliance

Employers should review their policies on leave as a reasonable accommodation and ensure that managers recognize when an employee requires time off for accommodation purposes. Employers with existing policies covering leave for domestic violence should ensure that their policies are in sync with the new law.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.