S T A T E O F N E W Y O R K
________________________________________________________________________
2348
2011-2012 Regular Sessions
I N A S S E M B L Y
January 18, 2011
___________
Introduced by M. of A. WEINSTEIN -- Multi-Sponsored by -- M. of A.
ABBATE, DESTITO, GALEF, GLICK, JAFFEE, McENENY, MILLMAN, PAULIN, PHEF-
FER, TITONE, WEPRIN -- read once and referred to the Committee on
Governmental Operations
AN ACT to amend the executive law, in relation to prohibiting employers
from discriminating against victims of domestic violence; and to
repeal certain provisions of such law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 34 of section 292 of the executive law is
REPEALED and a new subdivision 34 is added to read as follows:
34. THE TERM "VICTIM OF DOMESTIC VIOLENCE" MEANS A PERSON WHO IS A
VICTIM OF AN ACT WHICH WOULD CONSTITUTE A VIOLATION OF THE PENAL LAW,
INCLUDING, BUT NOT LIMITED TO, AN ACT DEFINED IN SUBDIVISION ONE OF
SECTION EIGHT HUNDRED TWELVE OF THE FAMILY COURT ACT, WHERE SUCH ACT IS
OR HAS ALLEGED TO HAVE BEEN COMMITTED BY A FAMILY OR HOUSEHOLD MEMBER AS
DEFINED IN SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY
COURT ACT.
S 2. Paragraph (a) of subdivision 1 of section 296 of the executive
law, as amended by chapter 80 of the laws of 2009, is amended to read as
follows:
(a) For an employer or licensing agency, because of an individual's
age, race, creed, color, national origin, sexual orientation, military
status, sex, disability, predisposing genetic characteristics, marital
status, or STATUS AS A VICTIM OF domestic violence [victim status], to
refuse to hire or employ or to bar or to discharge from employment such
individual or to discriminate against such individual in compensation or
in terms, conditions or privileges of employment.
S 3. Section 296 of the executive law is amended by adding a new
subdivision 20 to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06921-01-1
A. 2348 2
20. (A) IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOY-
ER OR LICENSING AGENCY, BECAUSE OF ANY INDIVIDUAL'S STATUS AS A VICTIM
OF DOMESTIC VIOLENCE, TO REFUSE TO HIRE OR EMPLOY OR LICENSE OR TO BAR
OR TO DISCHARGE FROM EMPLOYMENT SUCH INDIVIDUAL OR TO DISCRIMINATE
AGAINST SUCH INDIVIDUAL IN COMPENSATION OR IN TERMS, CONDITIONS OR PRIV-
ILEGES OF EMPLOYMENT.
(B) IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOYER OR
EMPLOYMENT AGENCY TO PRINT OR CIRCULATE OR CAUSE TO BE PRINTED OR CIRCU-
LATED ANY STATEMENT, ADVERTISEMENT OR PUBLICATION, OR TO USE ANY FORM OF
APPLICATION FOR EMPLOYMENT OR TO MAKE ANY INQUIRY IN CONNECTION WITH
PROSPECTIVE EMPLOYMENT WHICH EXPRESSES, DIRECTLY OR INDIRECTLY, ANY
LIMITATION, SPECIFICATION OR DISCRIMINATION AS TO STATUS AS A VICTIM OF
DOMESTIC VIOLENCE, OR ANY INTENT TO MAKE ANY SUCH LIMITATION, SPECIFICA-
TION OR DISCRIMINATION; PROVIDED, HOWEVER, THAT NO PROVISION OF THIS
SUBDIVISION SHALL BE CONSTRUED TO PROHIBIT THE EMPLOYER FROM MAKING ANY
INQUIRY OR OBTAINING INFORMATION FOR THE PURPOSE OF PROVIDING ASSISTANCE
TO, OR A REASONABLE ACCOMMODATION IN ACCORDANCE WITH THE PROVISIONS OF
THIS SUBDIVISION TO, A VICTIM OF DOMESTIC VIOLENCE.
(C)(1) IT SHALL BE 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, LIMITED TO
THOSE ACCOMMODATIONS SET FORTH IN SUBPARAGRAPH TWO OF THIS PARAGRAPH,
WHEN SUCH EMPLOYEE MUST BE ABSENT FROM WORK FOR A REASONABLE TIME,
UNLESS SUCH ABSENCE WOULD CAUSE AN UNDUE HARDSHIP TO THE EMPLOYER AS SET
FORTH IN SUBPARAGRAPH THREE OF THIS PARAGRAPH, PROVIDED, HOWEVER THAT
THE EMPLOYER MAY REQUIRE AN EMPLOYEE TO CHARGE ANY TIME OFF PURSUANT TO
THIS SECTION AGAINST ANY LEAVE WITH PAY ORDINARILY GRANTED, WHERE AVAIL-
ABLE, UNLESS OTHERWISE PROVIDED FOR IN A COLLECTIVE BARGAINING AGREEMENT
OR EXISTING EMPLOYEE HANDBOOK OR POLICY, AND ANY SUCH ABSENCE THAT
CANNOT BE CHARGED MAY BE TREATED AS LEAVE WITHOUT PAY. AN EMPLOYEE WHO
MUST BE ABSENT FROM WORK IN ACCORDANCE WITH SUBPARAGRAPH TWO OF THIS
PARAGRAPH SHALL BE ENTITLED TO THE CONTINUATION OF ANY HEALTH INSURANCE
COVERAGE PROVIDED BY THE EMPLOYER, TO WHICH THE EMPLOYEE IS OTHERWISE
ENTITLED DURING ANY SUCH ABSENCE.
(2) AN EMPLOYER IS REQUIRED TO PROVIDE A REASONABLE ACCOMMODATION TO
AN EMPLOYEE WHO IS A VICTIM OF DOMESTIC VIOLENCE WHO MUST BE ABSENT FROM
WORK FOR A REASONABLE TIME, IN ACCORDANCE WITH THE PROVISIONS OF SUBPAR-
AGRAPH ONE OF THIS PARAGRAPH, LIMITED TO THE FOLLOWING:
(I) SEEKING MEDICAL ATTENTION FOR INJURIES CAUSED BY 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; OR
(II) OBTAINING SERVICES FROM A DOMESTIC VIOLENCE SHELTER, PROGRAM, OR
RAPE CRISIS CENTER AS A RESULT OF DOMESTIC VIOLENCE; OR
(III) OBTAINING 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; OR
(IV) PARTICIPATING IN SAFETY PLANNING AND TAKING OTHER ACTIONS TO
INCREASE SAFETY FROM FUTURE INCIDENTS OF DOMESTIC VIOLENCE, INCLUDING
TEMPORARY OR PERMANENT RELOCATION; OR
(V) OBTAINING LEGAL SERVICES, ASSISTING IN THE PROSECUTION OF THE
OFFENSE, OR APPEARING IN COURT IN RELATION TO THE INCIDENT OR INCIDENTS
OF DOMESTIC VIOLENCE.
(3) AN EMPLOYER IS REQUIRED TO PROVIDE A REASONABLE ACCOMMODATION FOR
AN EMPLOYEE'S ABSENCE IN ACCORDANCE WITH THE PROVISIONS OF SUBPARAGRAPHS
A. 2348 3
ONE AND TWO OF THIS PARAGRAPH UNLESS THE EMPLOYER CAN DEMONSTRATE THAT
THE EMPLOYEE'S ABSENCE WOULD CONSTITUTE AN UNDUE HARDSHIP TO THE EMPLOY-
ER. A DETERMINATION OF WHETHER SUCH AN ABSENCE WILL CONSTITUTE AN UNDUE
HARDSHIP SHALL INCLUDE CONSIDERATION OF FACTORS SUCH AS:
(I) 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; AND
(II) THE TYPE OF OPERATION IN WHICH THE BUSINESS, PROGRAM OR ENTER-
PRISE IS ENGAGED, INCLUDING THE COMPOSITION AND STRUCTURE OF THE WORK-
FORCE.
(4) AN EMPLOYEE WHO MUST BE ABSENT FROM WORK IN ACCORDANCE WITH THE
PROVISIONS OF SUBPARAGRAPH ONE OF THIS PARAGRAPH SHALL PROVIDE THE
EMPLOYER WITH REASONABLE ADVANCE NOTICE OF THE EMPLOYEE'S ABSENCE,
UNLESS SUCH ADVANCE NOTICE IS NOT FEASIBLE.
(5) AN EMPLOYEE WHO MUST BE ABSENT FROM WORK IN ACCORDANCE WITH THE
PROVISIONS OF SUBPARAGRAPH ONE OF THIS PARAGRAPH AND WHO CANNOT FEASIBLY
GIVE REASONABLE ADVANCE NOTICE OF THE ABSENCE IN ACCORDANCE WITH SUBPAR-
AGRAPH FOUR OF THIS PARAGRAPH MUST, WITHIN A REASONABLE TIME AFTER THE
ABSENCE, PROVIDE A CERTIFICATION TO THE EMPLOYER WHEN REQUESTED BY THE
EMPLOYER.
SUCH CERTIFICATION SHALL BE IN THE FORM OF:
(I) A POLICE REPORT INDICATING THAT THE EMPLOYEE WAS A VICTIM OF
DOMESTIC VIOLENCE;
(II) A COURT ORDER PROTECTING OR SEPARATING THE EMPLOYEE FROM THE
PERPETRATOR OF AN ACT OF DOMESTIC VIOLENCE;
(III) OTHER EVIDENCE FROM THE COURT OR PROSECUTING ATTORNEY THAT THE
EMPLOYEE APPEARED IN COURT; OR
(IV) DOCUMENTATION FROM A MEDICAL PROFESSIONAL, DOMESTIC VIOLENCE
ADVOCATE, HEALTH CARE PROVIDER, OR COUNSELOR THAT THE EMPLOYEE WAS
UNDERGOING COUNSELING OR TREATMENT FOR PHYSICAL OR MENTAL INJURIES OR
ABUSE RESULTING IN VICTIMIZATION FROM AN ACT OF DOMESTIC VIOLENCE.
(6) 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 ACCOMMO-
DATION OF DISABILITY ARE UNLAWFUL DISCRIMINATORY PRACTICES.
(D) TO THE EXTENT ALLOWED BY LAW, EMPLOYERS SHALL MAINTAIN THE CONFI-
DENTIALITY OF ANY INFORMATION REGARDING AN EMPLOYEE'S STATUS AS A VICTIM
OF DOMESTIC VIOLENCE.
S 4. This act shall take effect on the ninetieth day after it shall
have become a law.