S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   308

                       Sixth Extraordinary Session

                            I N  S E N A T E

                              June 27, 2009
                               ___________

Introduced by COMMITTEE ON RULES -- (at request of the Governor) -- read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Rules

AN ACT to amend the executive law, in relation to prohibiting  employers
  from discriminating against victims of domestic violence

  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 34 to read as follows:
  34. THE TERM "VICTIM OF DOMESTIC VIOLENCE" MEANS ANY PERSON WHO  IS  A
VICTIM  OF  AN  ACT  WHICH  WOULD CONSTITUTE A VIOLENT FELONY OFFENSE AS
ENUMERATED IN SECTION 70.02 OF THE PENAL LAW  OR  A  FAMILY  OFFENSE  AS
ENUMERATED  IN  SUBDIVISION  ONE  OF SECTION EIGHT HUNDRED TWELVE OF THE
FAMILY COURT ACT, WHERE SUCH ACT OR ACTS ARE OR ARE ALLEGED TO HAVE BEEN
COMMITTED BY A MEMBER OF THE SAME FAMILY  OR  HOUSEHOLD  AS  DEFINED  IN
SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY COURT ACT.
  S 2. Subdivision 20 of section 296 of the executive law, as renumbered
by  chapter  204 of the laws of 1996, is renumbered subdivision 21 and a
new subdivision 20 is added to read as follows:
  20. (A) IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOY-
ER OR LICENSING AGENCY, BECAUSE OF ANY INDIVIDUAL'S STATUS AS  A  VICTIM
OF  DOMESTIC  VIOLENCE, TO REFUSE TO HIRE OR EMPLOY OR LICENSE OR TO BAR
OR TO DISCHARGE FROM  EMPLOYMENT  SUCH  INDIVIDUAL  OR  TO  DISCRIMINATE
AGAINST SUCH INDIVIDUAL IN COMPENSATION OR IN TERMS, CONDITIONS OR PRIV-
ILEGES 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 VICTIM OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12104-03-9
              

S. 308                              2

DOMESTIC VIOLENCE, OR ANY INTENT TO MAKE ANY SUCH LIMITATION, SPECIFICA-
TION OR DISCRIMINATION; PROVIDED, HOWEVER, THAT  NO  PROVISION  OF  THIS
SUBDIVISION  SHALL BE CONSTRUED TO PROHIBIT THE EMPLOYER FROM MAKING ANY
INQUIRY OR OBTAINING INFORMATION FOR THE PURPOSE OF PROVIDING ASSISTANCE
TO,  OR  A REASONABLE ACCOMMODATION IN ACCORDANCE WITH THE PROVISIONS OF
THIS SUBDIVISION TO, A VICTIM OF DOMESTIC VIOLENCE.
  (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 VICTIM OF DOMESTIC VIOLENCE, 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 AVAIL-
ABLE, 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 VICTIM OF DOMESTIC VIOLENCE WHO MUST BE ABSENT FROM
WORK FOR A REASONABLE TIME, IN ACCORDANCE WITH THE PROVISIONS OF SUBPAR-
AGRAPH ONE OF THIS PARAGRAPH, LIMITED TO THE FOLLOWING:
  (I) 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
  (II) OBTAINING SERVICES FROM A DOMESTIC VIOLENCE SHELTER, PROGRAM,  OR
RAPE CRISIS CENTER AS A RESULT OF DOMESTIC VIOLENCE; OR
  (III)  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
  (IV)  PARTICIPATING  IN  SAFETY  PLANNING  AND TAKING OTHER ACTIONS TO
INCREASE SAFETY FROM FUTURE INCIDENTS OF  DOMESTIC  VIOLENCE,  INCLUDING
TEMPORARY OR PERMANENT RELOCATION; OR
  (V)  OBTAINING  LEGAL  SERVICES,  ASSISTING  IN THE PROSECUTION OF THE
OFFENSE, OR APPEARING IN COURT IN RELATION TO THE INCIDENT OR  INCIDENTS
OF DOMESTIC VIOLENCE.
  (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 MUST, 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:
  (I) A POLICE REPORT INDICATING THAT  THE  EMPLOYEE  WAS  A  VICTIM  OF
DOMESTIC VIOLENCE;
  (II)  A  COURT  ORDER  PROTECTING  OR SEPARATING THE EMPLOYEE FROM THE
PERPETRATOR OF AN ACT OF DOMESTIC VIOLENCE;
  (III) OTHER EVIDENCE FROM THE COURT OR PROSECUTING ATTORNEY  THAT  THE
EMPLOYEE APPEARED IN COURT; OR
  (IV)  DOCUMENTATION  FROM  A  MEDICAL  PROFESSIONAL, DOMESTIC VIOLENCE
ADVOCATE, HEALTH CARE PROVIDER,  OR  COUNSELOR  THAT  THE  EMPLOYEE  WAS
UNDERGOING  COUNSELING  OR  TREATMENT FOR PHYSICAL OR MENTAL INJURIES OR
ABUSE RESULTING IN VICTIMIZATION FROM AN ACT OF DOMESTIC VIOLENCE.
  (6) 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  OF THIS SECTION WHICH
PROVIDE THAT DISCRIMINATION AND REFUSAL TO PROVIDE  REASONABLE  ACCOMMO-
DATION OF DISABILITY ARE UNLAWFUL DISCRIMINATORY PRACTICES.
  (D)  TO THE EXTENT ALLOWED BY LAW, EMPLOYERS SHALL MAINTAIN THE CONFI-
DENTIALITY OF ANY INFORMATION REGARDING AN EMPLOYEE'S STATUS AS A VICTIM
OF DOMESTIC VIOLENCE.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.