Victims of domestic violence gained additional employment protections under a new law recently signed by New York Governor Andrew Cuomo. Effective November 18, 2019, NY Senate Bill 1040 offers reasonable accommodations to victims when needing time off of work as well as protection from discrimination.
Covered Victims of Domestic Violence
A “victim of domestic violence” is defined to mean any person over sixteen, any married person, or any parent accompanied by a minor child, when such person or child is a victim of a criminal act committed by a family or household member. Covered criminal acts may include harassment, disorderly conduct, sexual misconduct, sexual abuse, stalking, menacing, kidnapping, assault, strangulation, identity theft, attempted murder, and other violations of the New York penal code. The acts must have resulted in actual or a substantial risk of physical or emotional harm to the person or child.
Family or household members that deem an act to be domestic violence include persons:
- related by blood or affinity
- legally married to each other
- formerly married to one another regardless of whether they still live together
- who have a child in common
- unrelated to each other but who are continually or at regular intervals living in the same household (or have done so in the past)
- who are in an intimate relationship, regardless of whether living together.
The new law makes it an unlawful discriminatory practice for an employer to refuse to provide a reasonable accommodation to an employee who is known by the employer to be a victim of domestic violence when the employee must be absent from work for a reasonable time to address concerns related to the violence. An employer may require the employee to take time off under an existing paid leave policy provided by the employer. Otherwise, the time off generally may be unpaid.
Reasons for which an employee may take time off include:
- Seeking medical attention for injuries;
- Obtaining services from a domestic violence shelter, program, or rape crisis center;
- Obtaining psychological counseling;
- Participating in safety planning and taking actions to increase safety from future domestic violence, including temporary or permanent relocation; and
- Obtaining legal services, appearing in court in relation to the incident, and assisting in the prosecution of the offense.
Employers must continue to provide any health insurance coverage to which the employee is otherwise entitled while off work for any of these reasons.
Undue Hardship Defense
New York employers need not provide reasonable accommodations for an employee’s absence due to domestic violence if able to show that the absence would constitute an undue hardship to the employer. Factors to support an undue hardship denial include the overall size of the business (e.g., number of employees, number and type of facilities, size of budget, etc.) and the type of operation/business.
Notice and Certification Requirements
Employees must provide reasonable advance notice of the need for a domestic violence-related absence, unless advance notice is not feasible. If an employee cannot feasibly give reasonable advance notice of the absence, then the employer may request, and the employee must provide, a certification to support the need for leave. That certification may be a police report, a court order, evidence of a court appearance, or documentation from a health care provider, counselor, or domestic violence advocate. Employers must maintain the confidentiality of any information related to the employee being a victim of domestic violence.
Employers may not discriminate against an individual because of his or her status as a victim of domestic violence. Prohibited activities include refusing to hire, firing, or discriminating against a victim in pay or in other terms and conditions of employment.
Concurrency with Other Laws
To the extent a domestic violence situation results in circumstances under which the employee would be entitled to leave or benefits under another applicable law, those laws may run concurrently with the New York domestic violence accommodation law. For example, if the employee suffers a serious health condition due to domestic violence, the employee may be entitled to leave under the federal Family and Medical Leave Act (FMLA) and may qualify for mandated disability benefits, if otherwise eligible. Similarly, if the employee’s child is the victim of domestic violence and has a serious health condition, the employee may be entitled to paid time off under New York’s paid family leave law. Employers will need to determine which laws apply to each particular circumstance.
Next Steps for Employers
With less than three months before this new law goes into effect, employers with New York employees should prepare now by:
- Reviewing employment policies and handbooks to reflect this new leave/accommodation;
- Training managers, supervisors, and HR professionals on the new law and the rights and obligations it provides; and
- Updating hiring, disciplinary, and firing procedures to prohibit discrimination on the basis of status as a victim of domestic violence.
ReedGroup will not be providing a product offering to outsource clients for the New York Domestic Violence Leave law. ReedGroup will not be administering this law because it does not specify a defined entitlement period and the undue hardship analysis required under the law should be conducted by the employer’s human resources department.