by Marti Cardi, Esq – Vice President Product Compliance
September 30, 2019
Effective November 18, 2019, New York employers with 4 or more employees must provide reasonable leave to employees who are victims of domestic violence. With this law New York joins a growing number of jurisdictions that provide job-protected leave of absence and other accommodations to employees who are victims of domestic violence, sexual assault, and stalking.
We previously wrote about these laws here.
Key provisions of the New York law are summarized below:
Covered employees. “Victim of domestic violence” means:
- any person over the age of sixteen;
- any married person; or
- any parent accompanied by his or her minor child or children
. . . in situations in which such person or such person’s child is a victim of an act which would constitute a criminal act including, but not limited to, acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; AND
- such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical
or emotional harm to such person or such person’s child; and
- such act or acts are or are alleged to have been committed by a family or household member.
View New York Social Services law § 459-a.
There are no eligibility requirements such as length of employment or hours worked; all employees are covered if they fit the above definition of a victim of domestic violence.
Leave reasons. Reasons for leave are limited 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
- 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.
Undue hardship. An employer may decline a requested leave if the employer can demonstrate that the employee’s absence would impose an undue hardship, based on consideration of factors such as:
- 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
- The type of operation in which the business, program, or enterprise is engaged, including the composition
and structure of the workforce.
Paid time off and benefits. The employer can require an employee to use available paid time off during the leave unless otherwise provided for in a collective bargaining agreement or existing employee handbook or policy. Any absence not covered by such paid time off may be without pay. The employee is entitled to continuation of any health insurance coverage provided by the employer on the same terms as available during other similar absences.
Employee notice and documentation. An employee taking leave pursuant to the law must provide the employer with “reasonable” advance notice unless that is not feasible under the circumstances. The law does not identify how much advance notice is reasonable, but presumably that is determined by the situation, such as when the employee learned of the need for time off.
Oddly, the employer can request documentation of the leave reason only if advance notice was not feasible. In that case, upon request by the employer, such documentation must be provided within a reasonable time after the absence and may include:
- 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
- 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.
Employers have a duty to maintain confidentiality of information received about an employee’s status as a victim of domestic violence.
If an employee becomes disabled as a result of domestic violence, the employer must treat the employee the same as an employee with any other disability under New York law, including provisions that make discrimination and refusal to provide reasonable accommodation of disability unlawful discriminatory practices. (Of course, the federal Americans with Disabilities Act would also apply.)
The law also prohibits employers from discriminating against an employee or applicant because of the individual’s status as a victim of domestic violence such as by refusing to hire or discharging the individual; and prohibits employers from inquiring about an individual’s status as a victim of domestic violence except in relation to a requested leave.
MATRIX CAN HELP! At Matrix we administer these domestic violence and sexual assault laws. We call them “Personal Protected Leave” to preserve the employee’s (and/or victim’s) privacy. In addition to those jurisdictions listed in our prior blog post here, another recent addition to these laws is that of Puerto Rico. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact your Matrix/Reliance Standard account manager now, or send us a message at email@example.com.