S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1040
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 10, 2019
                                ___________
 
 Introduced  by  Sen. PERSAUD -- read twice and ordered printed, and when
   printed to be committed to the Committee on Investigations and Govern-
   ment 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 REPEALED and a new subdivision 34 is added to read as follows: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" SHALL HAVE THE SAME MEANING
 AS IS ASCRIBED TO SUCH TERM BY SECTION FOUR HUNDRED FIFTY-NINE-A OF  THE
 SOCIAL SERVICES LAW.
   §  2.  Paragraph  (a) of subdivision 1 of section 296 of the executive
 law, as amended by chapter 365 of the laws of 2015, 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, familial
 status, 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 individ-
 ual in compensation or in terms, conditions or privileges of employment.
   § 3. Section 296 of the executive law  is  amended  by  adding  a  new
 subdivision 22 to read as follows:
   22. (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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD00842-01-9

 S. 1040                             2
 
   (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
 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:

 S. 1040                             3
 
   (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 OR HIS OR HER CHILD
 WAS A VICTIM OF DOMESTIC VIOLENCE;
   (II) A COURT ORDER PROTECTING OR SEPARATING THE EMPLOYEE OR HIS OR HER
 CHILD 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 OR HIS OR
 HER CHILD 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.
   § 4. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.