S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5063
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 23, 2021
                                ___________
 
 Introduced  by  Sen. JACKSON -- read twice and ordered printed, and when
   printed to be committed to the Committee on Investigations and Govern-
   ment Operations
 
 AN ACT to amend the executive law, in relation to prohibiting  employers
   from  discriminating  against  individuals  based on such individual's
   status as a caregiver

   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 39 to read as follows:
   39.  THE  TERM  "CAREGIVER"  SHALL  INCLUDE THE FAMILY MEMBER OR OTHER
 NATURAL PERSON WHO NORMALLY PROVIDES THE DAILY CARE OR SUPERVISION OF  A
 CARE  RECIPIENT,  OR  ANY  FAMILY  MEMBER  OR  OTHER  NATURAL PERSON WHO
 CONTRIBUTES TO AND IS INVOLVED IN THE  CARETAKING  RESPONSIBILITIES  FOR
 SUCH  CARE  RECIPIENT.  SUCH  CAREGIVER MAY, BUT NEED NOT, RESIDE IN THE
 SAME HOUSEHOLD AS THE CARE RECIPIENT. "CARE RECIPIENT"  SHALL  MEAN  ANY
 PERSON  WHO  IS  UNABLE  TO ATTEND TO HIS OR HER DAILY NEEDS WITHOUT THE
 ASSISTANCE OR REGULAR SUPERVISION OF A CAREGIVER DUE TO MENTAL OR  PHYS-
 ICAL  IMPAIRMENT.  SUCH  DEFINITION SHALL INCLUDE PERSONS UNDER EIGHTEEN
 YEARS OF AGE WHO SUFFER FROM MENTAL OR PHYSICAL IMPAIRMENT.  SUCH  DEFI-
 NITION  SHALL  NOT INCLUDE PERSONS PERFORMING CARETAKING SERVICES IN THE
 CAPACITY OF EMPLOYMENT AS A DOMESTIC WORKER AS  DEFINED  BY  SUBDIVISION
 SIXTEEN OF SECTION TWO OF THE LABOR LAW.
   §  2.  Paragraph  (a) of subdivision 1 of section 296 of the executive
 law, as separately amended by chapters 8 and 176 of the laws of 2019, is
 amended to read as follows:
   (a) For an employer or licensing agency, because  of  an  individual's
 age,  race,  creed,  color,  national origin, sexual orientation, gender
 identity or expression, military status, sex,  disability,  predisposing
 genetic characteristics, familial status, marital status, [or] status as
 a  victim  of  domestic violence, OR STATUS AS A CAREGIVER, to refuse to
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09867-01-1

 S. 5063                             2
 
 hire or employ or to bar or to discharge from employment such individual
 or to discriminate against such individual in compensation or in  terms,
 conditions or privileges of employment.
   §  3.  Section  296  of  the  executive law is amended by adding a new
 subdivision 23 to read as follows:
   23. (A) IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOY-
 ER OR LICENSING AGENCY, BECAUSE OF ANY INDIVIDUAL'S STATUS AS A CAREGIV-
 ER, TO REFUSE TO HIRE OR EMPLOY OR LICENSE OR TO  BAR  OR  TO  DISCHARGE
 FROM EMPLOYMENT SUCH INDIVIDUAL OR TO DISCRIMINATE AGAINST SUCH INDIVID-
 UAL IN COMPENSATION OR IN TERMS, CONDITIONS OR PRIVILEGES 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 CAREGIVER,
 OR  ANY  INTENT  TO MAKE ANY SUCH LIMITATION, SPECIFICATION OR DISCRIMI-
 NATION; PROVIDED, HOWEVER, THAT NO PROVISION OF THIS  SUBDIVISION  SHALL
 BE CONSTRUED TO PROHIBIT THE EMPLOYER FROM MAKING ANY INQUIRY OR OBTAIN-
 ING INFORMATION FOR THE PURPOSE OF PROVIDING ASSISTANCE TO, OR A REASON-
 ABLE ACCOMMODATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION
 TO, A CAREGIVER.
   (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 CAREGIVER, 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 AVAILABLE, 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  CAREGIVER  WHO  MUST BE ABSENT FROM WORK FOR A
 REASONABLE TIME, IN ACCORDANCE WITH THE PROVISIONS OF  SUBPARAGRAPH  ONE
 OF  THIS  PARAGRAPH,  IN ORDER TO ADMINISTER OR SUPERVISE THE DIAGNOSIS,
 CARE, OR TREATMENT OF A MENTAL OR PHYSICAL ILLNESS,  INJURY,  OR  HEALTH
 CONDITION OF THE CARE RECIPIENT.
   (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.

 S. 5063                             3
 
   (4) AN EMPLOYEE WHO MUST BE ABSENT FROM WORK IN  ACCORDANCE  WITH  THE
 PROVISIONS  OF  SUBPARAGRAPH  ONE  OF  THIS  PARAGRAPH SHALL PROVIDE THE
 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, MAY BE REQUIRED TO PROVIDE  DOCUMENTATION
 FROM  A  MEDICAL  PROFESSIONAL OR HEALTH CARE PROVIDER UPON REQUEST FROM
 THE EMPLOYER WITHIN A REASONABLE TIME AFTER SUCH ABSENCE.
   § 4. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.