S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2598
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 19, 2021
                                ___________
 
 Introduced  by  M. of A. FALL -- read once and referred to the Committee
   on Governmental Operations
 
 AN ACT to amend the executive law, in relation to requiring employers to
   engage in a good faith cooperative dialogue with employees who request
   accommodation due to a religious practice or observance

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision  10  of  section 296 of the executive law, as
 amended by chapter 166 of the laws of 2000, paragraph (a) as amended  by
 chapter  154 of the laws of 2019, and paragraph (b) as amended and para-
 graphs (c) and (d) as added by chapter 539  of  the  laws  of  2002,  is
 amended to read as follows:
   10.  (a)  It  shall  be  an  unlawful  discriminatory practice for any
 employer, or an employee or agent thereof, to impose upon a person as  a
 condition  of obtaining or retaining employment, including opportunities
 for promotion, advancement or transfers, any terms  or  conditions  that
 would require such person to violate or forego a sincerely held practice
 of  his  or her religion, including but not limited to the observance of
 any particular day or days or any portion thereof as a sabbath or  other
 holy day OR RELIGIOUS HOLIDAY in accordance with the requirements of his
 or  her  religion or the wearing of any attire, clothing, or facial hair
 in accordance with the requirements of  his  or  her  religion,  unless,
 after  engaging  in a bona fide effort WHICH SHALL INCLUDE A COOPERATIVE
 DIALOGUE, the employer demonstrates that  it  is  unable  to  reasonably
 accommodate  the  employee's  or  prospective  employee's sincerely held
 religious observance or practice without undue hardship on  the  conduct
 of  the  employer's business. Notwithstanding any other provision of law
 to the contrary, an employee shall not be entitled to premium  wages  or
 premium  benefits  for work performed during hours to which such premium
 wages or premium benefits would ordinarily be applicable, if the employ-
 ee is working during such hours only as an accommodation to his  or  her
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06142-01-1

 A. 2598                             2
 
 sincerely  held  religious  requirements.  Nothing  in this paragraph or
 paragraph (b) of this subdivision shall  alter  or  abridge  the  rights
 granted  to an employee concerning the payment of wages or privileges of
 seniority accruing to that employee.
   (b)  Except  where  it would cause an employer to incur an undue hard-
 ship, no person shall be required to BE PRESENT OR remain at his or  her
 place of employment during any day or days or portion thereof that, as a
 requirement  of  his  or  her religion, he or she observes as his or her
 sabbath or other holy day OR RELIGIOUS HOLIDAY, including  a  reasonable
 time prior and subsequent thereto for travel between his or her place of
 employment  and his or her home, provided however, that any such absence
 from work shall, wherever practicable [in the  reasonable  judgment  of]
 AND  AS  AGREED UPON BETWEEN the employer AND THE EMPLOYEE PURSUANT TO A
 COOPERATIVE DIALOGUE, be made up by an equivalent  amount  of  time  and
 work at some other mutually convenient time, or shall be charged against
 any  leave  with pay ordinarily granted, other than sick leave, provided
 further, however, that any such absence not so made up or  charged,  may
 be treated by the employer of such person as leave taken without pay.
   (c) It shall be an unlawful discriminatory practice for an employer to
 refuse  to permit an employee to utilize leave OR TO REFUSE TO ENGAGE IN
 A COOPERATIVE DIALOGUE REQUESTED BY AN EMPLOYEE, as  provided  in  para-
 graph (b) of this subdivision, solely because the leave will be used for
 absence from work to accommodate the employee's sincerely held religious
 observance or practice.
   (d)  As  used  in this subdivision: (1) "undue hardship" shall mean an
 accommodation requiring significant expense or difficulty  (including  a
 significant  interference  with  the  safe or efficient operation of the
 workplace or a violation of a bona fide seniority system). Factors to be
 considered in determining whether the accommodation constitutes an undue
 economic hardship shall include, but not be limited to:
   (i) the identifiable cost of the accommodation, including the costs of
 loss of productivity and of retaining  or  hiring  employees  or  trans-
 ferring  employees from one facility to another, in relation to the size
 and operating cost of the employer;
   (ii) the number of individuals who will need the  particular  accommo-
 dation to a sincerely held religious observance or practice; and
   (iii)  for  an  employer with multiple facilities, the degree to which
 the geographic separateness or administrative or fiscal relationship  of
 the facilities will make the accommodation more difficult or expensive.
   Provided,  however, an accommodation shall be considered to constitute
 an undue hardship if it will result in the inability of an  employee  to
 perform  the  essential  functions of the position in which he or she is
 employed.
   (2) "premium wages" shall include overtime pay and  compensatory  time
 off,  and additional remuneration for night, weekend or holiday work, or
 for standby or irregular duty.
   (3) "premium benefit"  shall  mean  an  employment  benefit,  such  as
 seniority, group life insurance, health insurance, disability insurance,
 sick  leave,  annual leave, or an educational or pension benefit that is
 greater than the employment benefit due the employee for  an  equivalent
 period of work performed during the regular work schedule of the employ-
 ee.
   (4) "COOPERATIVE DIALOGUE" SHALL MEAN THE PROCESS BY WHICH AN EMPLOYER
 AND  EMPLOYEE  ENGAGE  IN GOOD FAITH WRITTEN OR ORAL DIALOGUE CONCERNING
 SUCH EMPLOYEE'S NEEDS FOR ACCOMMODATION REGARDING HIS OR HER  OBSERVANCE
 OF  A SINCERELY HELD PRACTICE OF HIS OR HER RELIGION, POTENTIAL ACCOMMO-

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 DATIONS THAT MAY ADDRESS SUCH EMPLOYEE'S ACCOMMODATION  NEEDS,  AND  THE
 DIFFICULTIES  THAT  SUCH  POTENTIAL  ACCOMMODATIONS  MAY  POSE  FOR SUCH
 EMPLOYER.
   In the case of any employer other than the state, any of its political
 subdivisions  or  any  school district, this subdivision shall not apply
 where the uniform application of terms and conditions of  attendance  to
 employees is essential to prevent undue economic hardship to the employ-
 er.  In any proceeding in which the applicability of this subdivision is
 in issue, the burden of proof shall be upon the employer. If  any  ques-
 tion  shall arise whether a particular position or class of positions is
 excepted from this subdivision by this paragraph, such question  may  be
 referred in writing by any party claimed to be aggrieved, in the case of
 any position of employment by the state or any of its political subdivi-
 sions,  except  by any school district, to the civil service commission,
 in the case of any position of employment by any school district, to the
 commissioner of education, who shall determine such question and in  the
 case  of any other employer, a party claiming to be aggrieved may file a
 complaint with the division pursuant to this article. Any such  determi-
 nation by the civil service commission shall be reviewable in the manner
 provided  by  article  seventy-eight of the civil practice law and rules
 and any such determination by the commissioner  of  education  shall  be
 reviewable  in the manner and to the same extent as other determinations
 of the commissioner under section three hundred  ten  of  the  education
 law.
   § 2. This act shall take effect immediately.