S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5065
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 23, 2021
                                ___________
 
 Introduced  by  Sen. PERSAUD -- read twice and ordered printed, and when
   printed to be committed to the Committee on Labor
 
 AN ACT to amend the labor law, in relation to flexible working  arrange-
   ments  for  parents  and  legal  guardians  when  day care centers and
   schools are closed during a state or local disaster emergency

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The labor law is amended by adding a new section 202-n to
 read as follows:
   § 202-N. FLEXIBLE WORKING ARRANGEMENTS FOR PARENTS AND LEGAL GUARDIANS
 DURING A STATE OR LOCAL DISASTER EMERGENCY.   1.  DEFINITIONS.  FOR  THE
 PURPOSES OF THIS SECTION:
   (A) "SCHOOL-AGED CHILD" SHALL MEAN A CHILD OR CHILDREN ENROLLED IN 3-K
 OR PRE-KINDERGARTEN THROUGH TWELFTH GRADE.
   (B)  "DAY  CARE-AGED  CHILD" SHALL MEAN A CHILD ENROLLED IN A DAY CARE
 CENTER.
   (C) "PARENT" SHALL MEAN A BIOLOGICAL, FOSTER, OR  ADOPTIVE  PARENT,  A
 LEGAL GUARDIAN, OR OTHER PERSON WHO STANDS IN LOCO PARENTIS TO A SCHOOL-
 AGED CHILD OR CHILDREN.
   (D) "EMPLOYER" SHALL MEAN ALL EMPLOYERS WITHIN THE STATE.
   (E)  "FLEXIBLE  WORKING ARRANGEMENT" SHALL MEAN SHORT-TERM, INTERMEDI-
 ATE, OR LONG-TERM CHANGES IN THE  EMPLOYEE'S  REGULAR  WORKING  ARRANGE-
 MENTS,  INCLUDING  BUT  NOT LIMITED TO, CHANGES IN THE NUMBER OF DAYS OR
 HOURS WORKED, CHANGES IN THE TIME THE EMPLOYEE  ARRIVES  AT  OR  DEPARTS
 FROM  WORK,  REMOTE WORK, OR JOB-SHARING. "FLEXIBLE WORKING ARRANGEMENT"
 SHALL NOT INCLUDE VACATION, ROUTINE SCHEDULING  OF  SHIFTS,  OR  ANOTHER
 FORM OF EMPLOYEE LEAVE.
   (F) "INCONSISTENT WITH BUSINESS OPERATIONS" SHALL MEAN A DETERMINATION
 BY THE EMPLOYER BASED ON THE FOLLOWING CONSIDERATIONS: (I) THE BURDEN ON
 AN  EMPLOYER  OF  UNDUE ADDITIONAL COSTS; (II) A LEGITIMATE OR PRACTICAL
 DETRIMENTAL EFFECT ON AGGREGATE EMPLOYEE MORALE UNRELATED  TO  DISCRIMI-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09531-06-1

 S. 5065                             2
 
 NATION  OR  OTHER  UNLAWFUL  EMPLOYMENT PRACTICES; (III) A LEGITIMATE OR
 PRACTICAL DETRIMENTAL EFFECT ON THE  ABILITY  OF  AN  EMPLOYER  TO  MEET
 CONSUMER  DEMAND;  (IV) A SIGNIFICANT INABILITY TO REORGANIZE WORK AMONG
 EXISTING STAFF; (V) A LEGITIMATE OR PRACTICAL INABILITY TO RECRUIT ADDI-
 TIONAL  STAFF; (VI) A SIGNIFICANT DETRIMENTAL IMPACT ON BUSINESS QUALITY
 OR BUSINESS PERFORMANCE; (VII) AN INSUFFICIENCY OF WORK DURING THE PERI-
 ODS THE EMPLOYEE PROPOSES TO WORK; (VIII) PLANNED STRUCTURAL CHANGES  TO
 THE BUSINESS; AND (IX) ANY OTHER REASONS AS SPECIFIED BY THE COMMISSION-
 ER.
   2.  PRESUMPTION OF ENTITLEMENT FOR PARENTS AND LEGAL GUARDIANS TO WORK
 REMOTELY WHEN DAY CARE CENTERS AND SCHOOLS ARE CLOSED DUE TO A STATE  OR
 LOCAL  DISASTER  EMERGENCY.   (A) NOTWITHSTANDING ANY OTHER PROVISION OF
 LAW TO THE CONTRARY, AN EMPLOYEE SHALL  BE  ENTITLED  TO  WORK  REMOTELY
 WHERE  THE  ESSENTIAL  FUNCTIONS  OF  THE  EMPLOYEE'S  POSITION  CAN  BE
 PERFORMED REMOTELY AND (I) THE EMPLOYEE IS THE PARENT OF  A  SCHOOL-AGED
 CHILD  OR  DAY  CARE-AGED CHILD OR CHILDREN; (II) THE SCHOOL OR DAY CARE
 CENTER ATTENDED BY SUCH SCHOOL-AGED CHILD  OR  DAY  CARE-AGED  CHILD  OR
 CHILDREN  HAS  BEEN CLOSED PURSUANT TO AN ORDER OF A PUBLIC OFFICIAL DUE
 TO A STATE OR LOCAL DISASTER EMERGENCY, REGARDLESS OF WHETHER THERE WILL
 BE VIRTUAL OR REMOTE INSTRUCTION OR INSTRUCTION HAS BEEN SUSPENDED;  AND
 (III)  THE  PURPOSE  OF  WORKING  REMOTELY IS TO BE ABLE TO SUPERVISE OR
 OTHERWISE PROVIDE CARE FOR SUCH SCHOOL-AGED CHILD OR DAY CARE-AGED CHILD
 OR CHILDREN.
   (B) THERE SHALL BE A  REBUTTABLE  PRESUMPTION  THAT  AN  EMPLOYEE  CAN
 PERFORM  WORK  REMOTELY  IF  SUCH  EMPLOYEE  HAS  ALREADY PERFORMED WORK
 REMOTELY FOR TWO CONSECUTIVE PAY PERIODS, OR  TWO  WEEKS,  WHICHEVER  IS
 LESS  TIME,  IN  THE CURRENT OR IMMEDIATELY PRECEDING CALENDAR YEAR. THE
 PRESUMPTION MAY BE REBUTTED BY EVIDENCE SHOWING THAT THE EMPLOYEE CANNOT
 PERFORM ESSENTIAL DUTIES REMOTELY.
   (C) WHERE A SIGNIFICANT PORTION, BUT NOT ALL, OF THE  ESSENTIAL  FUNC-
 TIONS OF THE POSITION IN WHICH THE EMPLOYEE IS EMPLOYED CAN BE PERFORMED
 REMOTELY,  EMPLOYERS  SHALL  CONSIDER WHETHER A SIMILAR ARRANGEMENT OR A
 PARTIAL REMOTE WORK ARRANGEMENT MAY BE GRANTED IN A MANNER THAT  IS  NOT
 INCONSISTENT  WITH ITS BUSINESS OPERATIONS OR LEGAL OR CONTRACTUAL OBLI-
 GATIONS.
   3. RIGHT OF PARENTS AND LEGAL GUARDIANS TO  REQUEST  FLEXIBLE  WORKING
 ARRANGEMENTS  WHEN DAY CARE CENTERS OR SCHOOLS ARE CLOSED DUE TO A STATE
 OR LOCAL DISASTER EMERGENCY.  (A) NOTWITHSTANDING ANY OTHER PROVISION OF
 LAW TO THE CONTRARY, AN EMPLOYEE MAY REQUEST A FLEXIBLE WORKING ARRANGE-
 MENT THAT MEETS THE NEEDS OF BOTH THE EMPLOYER AND EMPLOYEE  WHERE:  (I)
 THE  EMPLOYEE  IS  A  PARENT  OF A SCHOOL-AGED OR DAY CARE-AGED CHILD OR
 CHILDREN; (II) THE SCHOOL OR DAY CARE CENTER ATTENDED  BY  SUCH  SCHOOL-
 AGED  CHILD  OR DAY CARE-AGED CHILD OR CHILDREN HAS BEEN CLOSED PURSUANT
 TO AN ORDER OF A PUBLIC OFFICIAL DUE TO A STATE OR LOCAL DISASTER  EMER-
 GENCY, REGARDLESS OF WHETHER THERE WILL BE VIRTUAL OR REMOTE INSTRUCTION
 OR INSTRUCTION HAS BEEN SUSPENDED; AND (III) THE PURPOSE OF THE FLEXIBLE
 WORKING ARRANGEMENT IS TO BE ABLE TO SUPERVISE OR OTHERWISE PROVIDE CARE
 FOR SUCH SCHOOL-AGED CHILD OR DAY CARE-AGED CHILD OR CHILDREN.
   (B)  NOTHING  IN  THIS  SUBDIVISION  SHALL  BE CONSTRUED TO REQUIRE AN
 EMPLOYER TO ACCEPT  THE  FLEXIBLE  WORK  ARRANGEMENT  REQUESTED  BY  THE
 EMPLOYEE.
   (C)  THE  EMPLOYER SHALL RESPOND TO THE REQUEST FOR A FLEXIBLE WORKING
 ARRANGEMENT FROM THE EMPLOYEE, AND SHALL CONSIDER THE EMPLOYEE'S REQUEST
 FOR A FLEXIBLE WORKING ARRANGEMENT AND WHETHER THE REQUEST OR A  SIMILAR
 ARRANGEMENT  COULD  BE GRANTED IN A MANNER THAT IS NOT INCONSISTENT WITH
 ITS BUSINESS OPERATIONS OR ITS LEGAL OR CONTRACTUAL OBLIGATIONS.

 S. 5065                             3
 
   4. (A) NOTHING IN THIS SECTION  SHALL  BE  CONSTRUED  TO  PROHIBIT  AN
 EMPLOYER FROM REQUIRING AN EMPLOYEE TO REQUEST A REMOTE WORK ARRANGEMENT
 OR  FLEXIBLE  WORKING  ARRANGEMENT  SUFFICIENTLY IN ADVANCE OF WHEN SUCH
 REMOTE WORK OR FLEXIBLE WORKING ARRANGEMENT WOULD COMMENCE. AN  EMPLOYER
 MAY  ESTABLISH  REASONABLE  STANDARDS  TO DETERMINE THE TIME, PLACE, AND
 MANNER IN WHICH  THE EMPLOYEE SHALL REQUEST A REMOTE  WORK  OR  FLEXIBLE
 WORKING ARRANGEMENT PURSUANT TO THIS SECTION.
   (B)  AN  EMPLOYER  SHALL  RESPOND  TO THE REQUEST FOR A REMOTE WORK OR
 FLEXIBLE WORKING ARRANGEMENT PURSUANT TO THIS SECTION  IN  A  REASONABLY
 TIMELY MANNER, BUT IN NO CASE SHALL SUCH DECISION BE PROVIDED LATER THAN
 FOURTEEN  DAYS  FROM RECEIPT OF A REQUEST. IF SUCH REQUEST WAS SUBMITTED
 IN WRITING, THE EMPLOYER SHALL STATE ANY COMPLETE OR PARTIAL  DENIAL  OF
 THE REQUEST IN WRITING, CITING THE REASON AS TO DENYING SUCH REQUEST.
   5.  NOTHING  IN  THIS  SECTION SHALL BE DEEMED TO DIMINISH THE RIGHTS,
 PRIVILEGES, OR REMEDIES OF ANY EMPLOYEE UNDER ANY COLLECTIVE  BARGAINING
 AGREEMENT.
   6.  NOTHING IN THIS SECTION SHALL BE DEEMED TO AFFECT ANY LEGAL RIGHTS
 AN EMPLOYER OR EMPLOYEE MAY HAVE UNDER APPLICABLE LAW TO CREATE,  TERMI-
 NATE, OR MODIFY A REMOTE WORK OR FLEXIBLE WORKING ARRANGEMENT.
   7.  NO  EMPLOYER  OR  HIS OR HER AGENT, OR THE OFFICER OR AGENT OF ANY
 CORPORATION, PARTNERSHIP, OR LIMITED LIABILITY  COMPANY,  OR  ANY  OTHER
 PERSON,  SHALL  DISCHARGE,  THREATEN,  PENALIZE,  OR IN ANY OTHER MANNER
 DISCRIMINATE OR RETALIATE AGAINST ANY EMPLOYEE BECAUSE SUCH EMPLOYEE HAS
 EXERCISED HIS OR HER RIGHTS AFFORDED UNDER THIS SECTION.
   8. (A) THE COMMISSIONER MAY BRING AN ACTION AGAINST  AN  EMPLOYER  FOR
 FAILURE  TO  ADHERE TO THE PROVISIONS OF THIS SECTION, INCLUDING INJUNC-
 TIVE RELIEF TO ENJOIN FUTURE CONDUCT.
   (B) ANY EMPLOYER WHO VIOLATES THE PROVISIONS  OF  THIS  SECTION  SHALL
 FORFEIT  TO  THE  PEOPLE  OF THE STATE A SUM OF FIVE HUNDRED DOLLARS FOR
 EACH VIOLATION, TO BE RECOVERED BY THE COMMISSIONER IN ANY LEGAL  ACTION
 TAKEN PURSUANT TO THIS SUBDIVISION.
   9.  THE  COMMISSIONER  SHALL  PROMULGATE RULES AND REGULATIONS FOR THE
 IMPLEMENTATION OF THIS SECTION.
   § 2. Nothing in this act shall be construed to prevent a locality from
 enacting and enforcing local laws or ordinances which meet or exceed the
 standards or requirements set forth in this act.
   § 3. This act shall take effect on the thirtieth day  after  it  shall
 have become a law; provided, however, that effective immediately employ-
 ees  may begin the process of requesting remote work or flexible working
 arrangements pursuant to this act.