Assembly Bill A10405

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10405
 
                           I N  A S S E M B L Y
 
                               May 13, 2022
                                ___________
 
 Introduced  by  COMMITTEE ON RULES -- (at request of M. of A. Fernandez)
   -- 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  individuals  based on such individual's
   status as a caregiver
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 292 of the executive law is amended by adding a new
 subdivision 39 to read as follows:
   39.  THE  TERM  "CAREGIVER"  SHALL  INCLUDE THE FAMILY MEMBER OR OTHER
 NATURAL PERSON WHO NORMALLY PROVIDES THE DAILY CARE OR SUPERVISION OF  A
 CARE  RECIPIENT,  OR  ANY  FAMILY  MEMBER  OR  OTHER  NATURAL PERSON WHO
 CONTRIBUTES TO AND IS INVOLVED IN THE  CARETAKING  RESPONSIBILITIES  FOR
 SUCH  CARE  RECIPIENT.  SUCH  CAREGIVER MAY, BUT NEED NOT, RESIDE IN THE
 SAME HOUSEHOLD AS THE CARE RECIPIENT. "CARE RECIPIENT"  SHALL  MEAN  ANY
 PERSON  WHO  IS  UNABLE  TO ATTEND TO HIS OR HER DAILY NEEDS WITHOUT THE
 ASSISTANCE OR REGULAR SUPERVISION OF A CAREGIVER DUE TO MENTAL OR  PHYS-
 ICAL  IMPAIRMENT.  SUCH  DEFINITION SHALL INCLUDE PERSONS UNDER EIGHTEEN
 YEARS OF AGE WHO SUFFER FROM MENTAL OR PHYSICAL IMPAIRMENT.  SUCH  DEFI-
 NITION  SHALL  NOT INCLUDE PERSONS PERFORMING CARETAKING SERVICES IN THE
 CAPACITY OF EMPLOYMENT AS A DOMESTIC WORKER AS  DEFINED  BY  SUBDIVISION
 SIXTEEN OF SECTION TWO OF THE LABOR LAW.
   §  2.  Paragraph  (a) of subdivision 1 of section 296 of the executive
 law, as separately amended by chapters 8 and 176 of the laws of 2019, 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, gender
 identity or expression, military status, sex,  disability,  predisposing
 genetic characteristics, familial status, marital status, [or] status as
 a  victim  of  domestic violence, OR STATUS AS A CAREGIVER, 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09867-01-1
              

 A. 10405                            2
 
   §  3.  Section  296  of  the  executive law is amended by adding a new
 subdivision 23 to read as follows:
   23. (A) IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOY-
 ER OR LICENSING AGENCY, BECAUSE OF ANY INDIVIDUAL'S STATUS AS A CAREGIV-
 ER,  TO  REFUSE  TO  HIRE OR EMPLOY OR LICENSE 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.
   (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 CAREGIVER,
 OR ANY INTENT TO MAKE ANY SUCH LIMITATION,  SPECIFICATION  OR  DISCRIMI-
 NATION;  PROVIDED,  HOWEVER, THAT NO PROVISION OF THIS SUBDIVISION SHALL
 BE CONSTRUED TO PROHIBIT THE EMPLOYER FROM MAKING ANY INQUIRY OR OBTAIN-
 ING INFORMATION FOR THE PURPOSE OF PROVIDING ASSISTANCE TO, OR A REASON-
 ABLE ACCOMMODATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION
 TO, A CAREGIVER.
   (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 CAREGIVER, 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  AVAILABLE,  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 CAREGIVER WHO  MUST  BE  ABSENT  FROM  WORK  FOR  A
 REASONABLE  TIME,  IN ACCORDANCE WITH THE PROVISIONS OF SUBPARAGRAPH ONE
 OF THIS PARAGRAPH, IN ORDER TO ADMINISTER OR  SUPERVISE  THE  DIAGNOSIS,
 CARE,  OR  TREATMENT  OF A MENTAL OR PHYSICAL ILLNESS, INJURY, OR HEALTH
 CONDITION OF THE CARE RECIPIENT.
   (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:
   (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
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 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, MAY BE REQUIRED TO PROVIDE  DOCUMENTATION
 FROM  A  MEDICAL  PROFESSIONAL OR HEALTH CARE PROVIDER UPON REQUEST FROM
 THE EMPLOYER WITHIN A REASONABLE TIME AFTER SUCH ABSENCE.
   § 4. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.