On August 20, 2019, Governor Andrew Cuomo approved enhanced protections for domestic violence victims at work.  The New York Human Rights Law amendments will create additional obligations for employers to accommodate employees who have been victims of domestic violence.  The amendments take effect on November 18, 2019.

Who is a “Victim of Domestic Violence”?

These amendments modify the definition of a “victim of domestic violence” under the New York Human Rights Law.

Employees will qualify as a domestic violence victim if they or their child has been a victim of a criminal act that resulted in actual physical or emotional injury or has created a substantial risk of physical or emotional harm to such employee or their child. The criminal acts must also have been committed by a family or household member.

Family or household members include people related by blood, married to each other, living together, and others.

The law does not apply to employees younger than 16 unless they are married or have a child.

Legal Protections for Domestic Violence Victims at Work

New York employers may not discriminate against an individual because of their status as a victim of domestic violence.  This includes refusing to employ someone because they are a domestic violence victim; terminating an individual’s employment or negatively changing their compensation or other work conditions based on that status; and advertising any limitation related to employment based on such status. Harassment of an employee who has been a victim of domestic violence is also prohibited.

Plus, the Human Rights Law adds a new affirmative requirement to provide reasonable accommodations to employees who have experienced domestic violence.

What Is the Employer’s Duty to Reasonably Accommodate?

Employers in New York will be required to reasonably accommodate victims of domestic violence who need a reasonable amount of time away from work for any of the following reasons that pertain to an incident or incidents of domestic violence:

• Seeking medical attention for injuries;
• Obtaining services from a domestic violence shelter, program or rape crisis center;
• Getting psychological counseling, including for a child who is a victim of domestic violence;
• Participating in safety planning and taking other actions to increase safety from future incidents of domestic violence, which may include temporary or permanent relocation; or
• Obtaining legal services, assisting in the prosecution of an offense, or appearing in court.

In these situations, employers must provide reasonable accommodations unless they would pose an undue hardship. The degree of hardship depends on several factors. These include the overall size of the employer’s business, the nature of the business, and the structure of its workforce.

Employee Obligations for Receiving Accommodation

An employee seeking time off as an accommodation will need to provide the employer with reasonable advance notice whenever possible.

Employers may require a certification in cases where the employee does not provide advance notice. Acceptable documentation includes:

• 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.

If an employer has a policy that includes paid time off, such as vacation, it may require the employee to use earned paid time off for a protected absence. However, if the employee has no available paid time off, the employer does not have to pay the employee.

An employee who must be absent from work as a domestic violence victim accommodation has the right during the absence to continue any health insurance coverage provided by the employer.

Confidentiality

Under these amendments, employers must keep information about an employee’s status as a victim of domestic violence confidential.

The law does not expand on this obligation. Presumably, employers must be able to discuss the situation to the extent necessary to provide necessary accommodations. However, disclosure of the reason for an employee’s absence to co-workers could violate this new requirement.

What Should Employers Do Now?

You must ensure that managers recognize these new responsibilities. This especially includes both the requirement to maintain confidentiality and the obligation to allow time off from work to domestic violence victims. And be sure to take such requests seriously. Although employers might be able to deny time off in some cases, the law is intended to protect employees even if it inconveniences business operations.

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