Expansion of Protection for Domestic Violence Victims

The New York State Human Rights Law was amended into law A5618/S1040 on August 20, 2019, with respect to protection for victims of domestic violence. The Amendment becomes effective on November 18, 2019. One of the amendments was pertaining to the accommodation of victims of domestic violence by the employer. The Amendment requires employers to reasonably accommodate victims of domestic violence who must be absent from work “for a reasonable amount of time” to:

• 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
• Obtaining services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence; or
• 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
• Participating in safety planning and taking other actions to increase safety from future incidents of domestic violence, including
  temporary or permanent relocation; or
• Obtaining legal services, assisting in the prosecution of the offense, or appearing in court in relation to the incident or incidents of domestic violence.

An employer is required to provide reasonable accommodation for an employee’s absence unless the employer can demonstrate that the employee’s absence would constitute an undue hardship to the employer. A decision of whether the absence will cause an unnecessary hardship requires an evaluation of factors, such as the size of the employer’s business and the nature of its operation, including the composition and structure of its workforce. Employers may require employees to use any available paid time off during any leave provided as an accommodation.

The Amendment requires an employee to provide the employer with reasonable notice of the need to be absent, if reasonable. If the advance notice was not feasible, the employee must, upon employer request, provide a certification confirming the requirement for the time-off accommodation. An employee who must be absent from work who cannot feasibly give reasonable advance notice of the absence 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:

• A police report indicating that the employee or his or her child was a victim of domestic violence;
• A court order protecting or separating the employee or his or her child from the perpetrator of an act of domestic violence;
• Other evidence from the court or prosecuting attorney that the employee appeared in court; or
• 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.

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 which provide that discrimination and refusal to provide reasonable accommodation of disability are unlawful discriminatory practices.

To the extent allowed by law, employers shall maintain the confidentiality of any information regarding an employee’s status as a victim of domestic violence.