S T A T E O F N E W Y O R K
________________________________________________________________________
3385
2013-2014 Regular Sessions
I N S E N A T E
February 1, 2013
___________
Introduced by Sens. HASSELL-THOMPSON, KRUEGER -- read twice and ordered
printed, and when printed to be committed to the Committee on Investi-
gations and Government 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:
1 Section 1. Subdivision 34 of section 292 of the executive law is
2 REPEALED and a new subdivision 34 is added to read as follows:
3 34. THE TERM "VICTIM OF DOMESTIC VIOLENCE" SHALL HAVE THE SAME MEANING
4 AS IS ASCRIBED TO SUCH TERM BY SECTION FOUR HUNDRED FIFTY-NINE-A OF THE
5 SOCIAL SERVICES LAW.
6 S 2. Paragraph (a) of subdivision 1 of section 296 of the executive
7 law, as amended by chapter 80 of the laws of 2009, is amended to read as
8 follows:
9 (a) For an employer or licensing agency, because of an individual's
10 age, race, creed, color, national origin, sexual orientation, military
11 status, sex, disability, predisposing genetic characteristics, marital
12 status, or STATUS AS A VICTIM OF domestic violence [victim status], to
13 refuse to hire or employ or to bar or to discharge from employment such
14 individual or to discriminate against such individual in compensation or
15 in terms, conditions or privileges of employment.
16 S 3. Section 296 of the executive law is amended by adding a new
17 subdivision 20 to read as follows:
18 20. (A) IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOY-
19 ER OR LICENSING AGENCY, BECAUSE OF ANY INDIVIDUAL'S STATUS AS A VICTIM
20 OF DOMESTIC VIOLENCE, TO REFUSE TO HIRE OR EMPLOY OR LICENSE OR TO BAR
21 OR TO DISCHARGE FROM EMPLOYMENT SUCH INDIVIDUAL OR TO DISCRIMINATE
22 AGAINST SUCH INDIVIDUAL IN COMPENSATION OR IN TERMS, CONDITIONS OR PRIV-
23 ILEGES OF EMPLOYMENT.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03699-01-3
S. 3385 2
1 (B) IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOYER OR
2 EMPLOYMENT AGENCY TO PRINT OR CIRCULATE OR CAUSE TO BE PRINTED OR CIRCU-
3 LATED ANY STATEMENT, ADVERTISEMENT OR PUBLICATION, OR TO USE ANY FORM OF
4 APPLICATION FOR EMPLOYMENT OR TO MAKE ANY INQUIRY IN CONNECTION WITH
5 PROSPECTIVE EMPLOYMENT WHICH EXPRESSES, DIRECTLY OR INDIRECTLY, ANY
6 LIMITATION, SPECIFICATION OR DISCRIMINATION AS TO STATUS AS A VICTIM OF
7 DOMESTIC VIOLENCE, OR ANY INTENT TO MAKE ANY SUCH LIMITATION, SPECIFICA-
8 TION OR DISCRIMINATION; PROVIDED, HOWEVER, THAT NO PROVISION OF THIS
9 SUBDIVISION SHALL BE CONSTRUED TO PROHIBIT THE EMPLOYER FROM MAKING ANY
10 INQUIRY OR OBTAINING INFORMATION FOR THE PURPOSE OF PROVIDING ASSISTANCE
11 TO, OR A REASONABLE ACCOMMODATION IN ACCORDANCE WITH THE PROVISIONS OF
12 THIS SUBDIVISION TO, A VICTIM OF DOMESTIC VIOLENCE.
13 (C)(1) IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOYER
14 TO REFUSE TO PROVIDE A REASONABLE ACCOMMODATION TO AN EMPLOYEE WHO IS
15 KNOWN BY THE EMPLOYER TO BE A VICTIM OF DOMESTIC VIOLENCE, LIMITED TO
16 THOSE ACCOMMODATIONS SET FORTH IN SUBPARAGRAPH TWO OF THIS PARAGRAPH,
17 WHEN SUCH EMPLOYEE MUST BE ABSENT FROM WORK FOR A REASONABLE TIME,
18 UNLESS SUCH ABSENCE WOULD CAUSE AN UNDUE HARDSHIP TO THE EMPLOYER AS SET
19 FORTH IN SUBPARAGRAPH THREE OF THIS PARAGRAPH, PROVIDED, HOWEVER THAT
20 THE EMPLOYER MAY REQUIRE AN EMPLOYEE TO CHARGE ANY TIME OFF PURSUANT TO
21 THIS SECTION AGAINST ANY LEAVE WITH PAY ORDINARILY GRANTED, WHERE AVAIL-
22 ABLE, UNLESS OTHERWISE PROVIDED FOR IN A COLLECTIVE BARGAINING AGREEMENT
23 OR EXISTING EMPLOYEE HANDBOOK OR POLICY, AND ANY SUCH ABSENCE THAT
24 CANNOT BE CHARGED MAY BE TREATED AS LEAVE WITHOUT PAY. AN EMPLOYEE WHO
25 MUST BE ABSENT FROM WORK IN ACCORDANCE WITH SUBPARAGRAPH TWO OF THIS
26 PARAGRAPH SHALL BE ENTITLED TO THE CONTINUATION OF ANY HEALTH INSURANCE
27 COVERAGE PROVIDED BY THE EMPLOYER, TO WHICH THE EMPLOYEE IS OTHERWISE
28 ENTITLED DURING ANY SUCH ABSENCE.
29 (2) AN EMPLOYER IS REQUIRED TO PROVIDE A REASONABLE ACCOMMODATION TO
30 AN EMPLOYEE WHO IS A VICTIM OF DOMESTIC VIOLENCE WHO MUST BE ABSENT FROM
31 WORK FOR A REASONABLE TIME, IN ACCORDANCE WITH THE PROVISIONS OF SUBPAR-
32 AGRAPH ONE OF THIS PARAGRAPH, LIMITED TO THE FOLLOWING:
33 (I) SEEKING MEDICAL ATTENTION FOR INJURIES CAUSED BY DOMESTIC VIOLENCE
34 INCLUDING FOR A CHILD WHO IS A VICTIM OF DOMESTIC VIOLENCE, PROVIDED
35 THAT THE EMPLOYEE IS NOT THE PERPETRATOR OF THE DOMESTIC VIOLENCE
36 AGAINST THE CHILD; OR
37 (II) OBTAINING SERVICES FROM A DOMESTIC VIOLENCE SHELTER, PROGRAM, OR
38 RAPE CRISIS CENTER AS A RESULT OF DOMESTIC VIOLENCE; OR
39 (III) OBTAINING PSYCHOLOGICAL COUNSELING RELATED TO AN INCIDENT OR
40 INCIDENTS OF DOMESTIC VIOLENCE, INCLUDING FOR A CHILD WHO IS A VICTIM OF
41 DOMESTIC VIOLENCE, PROVIDED THAT THE EMPLOYEE IS NOT THE PERPETRATOR OF
42 THE DOMESTIC VIOLENCE AGAINST THE CHILD; OR
43 (IV) PARTICIPATING IN SAFETY PLANNING AND TAKING OTHER ACTIONS TO
44 INCREASE SAFETY FROM FUTURE INCIDENTS OF DOMESTIC VIOLENCE, INCLUDING
45 TEMPORARY OR PERMANENT RELOCATION; OR
46 (V) OBTAINING LEGAL SERVICES, ASSISTING IN THE PROSECUTION OF THE
47 OFFENSE, OR APPEARING IN COURT IN RELATION TO THE INCIDENT OR INCIDENTS
48 OF DOMESTIC VIOLENCE.
49 (3) AN EMPLOYER IS REQUIRED TO PROVIDE A REASONABLE ACCOMMODATION FOR
50 AN EMPLOYEE'S ABSENCE IN ACCORDANCE WITH THE PROVISIONS OF SUBPARAGRAPHS
51 ONE AND TWO OF THIS PARAGRAPH UNLESS THE EMPLOYER CAN DEMONSTRATE THAT
52 THE EMPLOYEE'S ABSENCE WOULD CONSTITUTE AN UNDUE HARDSHIP TO THE EMPLOY-
53 ER. A DETERMINATION OF WHETHER SUCH AN ABSENCE WILL CONSTITUTE AN UNDUE
54 HARDSHIP SHALL INCLUDE CONSIDERATION OF FACTORS SUCH AS:
S. 3385 3
1 (I) THE OVERALL SIZE OF THE BUSINESS, PROGRAM OR ENTERPRISE WITH
2 RESPECT TO THE NUMBER OF EMPLOYEES, NUMBER AND TYPE OF FACILITIES, AND
3 SIZE OF BUDGET; AND
4 (II) THE TYPE OF OPERATION IN WHICH THE BUSINESS, PROGRAM OR ENTER-
5 PRISE IS ENGAGED, INCLUDING THE COMPOSITION AND STRUCTURE OF THE WORK-
6 FORCE.
7 (4) AN EMPLOYEE WHO MUST BE ABSENT FROM WORK IN ACCORDANCE WITH THE
8 PROVISIONS OF SUBPARAGRAPH ONE OF THIS PARAGRAPH SHALL PROVIDE THE
9 EMPLOYER WITH REASONABLE ADVANCE NOTICE OF THE EMPLOYEE'S ABSENCE,
10 UNLESS SUCH ADVANCE NOTICE IS NOT FEASIBLE.
11 (5) AN EMPLOYEE WHO MUST BE ABSENT FROM WORK IN ACCORDANCE WITH THE
12 PROVISIONS OF SUBPARAGRAPH ONE OF THIS PARAGRAPH AND WHO CANNOT FEASIBLY
13 GIVE REASONABLE ADVANCE NOTICE OF THE ABSENCE IN ACCORDANCE WITH SUBPAR-
14 AGRAPH FOUR OF THIS PARAGRAPH MUST, WITHIN A REASONABLE TIME AFTER THE
15 ABSENCE, PROVIDE A CERTIFICATION TO THE EMPLOYER WHEN REQUESTED BY THE
16 EMPLOYER.
17 SUCH CERTIFICATION SHALL BE IN THE FORM OF:
18 (I) A POLICE REPORT INDICATING THAT THE EMPLOYEE OR HIS OR HER CHILD
19 WAS A VICTIM OF DOMESTIC VIOLENCE;
20 (II) A COURT ORDER PROTECTING OR SEPARATING THE EMPLOYEE OR HIS OR HER
21 CHILD FROM THE PERPETRATOR OF AN ACT OF DOMESTIC VIOLENCE;
22 (III) OTHER EVIDENCE FROM THE COURT OR PROSECUTING ATTORNEY THAT THE
23 EMPLOYEE APPEARED IN COURT; OR
24 (IV) DOCUMENTATION FROM A MEDICAL PROFESSIONAL, DOMESTIC VIOLENCE
25 ADVOCATE, HEALTH CARE PROVIDER, OR COUNSELOR THAT THE EMPLOYEE OR HIS OR
26 HER CHILD WAS UNDERGOING COUNSELING OR TREATMENT FOR PHYSICAL OR MENTAL
27 INJURIES OR ABUSE RESULTING IN VICTIMIZATION FROM AN ACT OF DOMESTIC
28 VIOLENCE.
29 (6) WHERE AN EMPLOYEE HAS A PHYSICAL OR MENTAL DISABILITY RESULTING
30 FROM AN INCIDENT OR SERIES OF INCIDENTS OF DOMESTIC VIOLENCE, SUCH
31 EMPLOYEE SHALL BE TREATED IN THE SAME MANNER AS AN EMPLOYEE WITH ANY
32 OTHER DISABILITY, PURSUANT TO THE PROVISIONS OF THIS SECTION WHICH
33 PROVIDE THAT DISCRIMINATION AND REFUSAL TO PROVIDE REASONABLE ACCOMMO-
34 DATION OF DISABILITY ARE UNLAWFUL DISCRIMINATORY PRACTICES.
35 (D) TO THE EXTENT ALLOWED BY LAW, EMPLOYERS SHALL MAINTAIN THE CONFI-
36 DENTIALITY OF ANY INFORMATION REGARDING AN EMPLOYEE'S STATUS AS A VICTIM
37 OF DOMESTIC VIOLENCE.
38 S 4. This act shall take effect on the ninetieth day after it shall
39 have become a law.