S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5465--A
     Cal. No. 766
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               March 6, 2023
                                ___________
 
 Introduced  by  Sens.  JACKSON, FERNANDEZ, MAY -- read twice and ordered
   printed, and when printed to be committed to the Committee on Investi-
   gations and Government Operations -- recommitted to the  Committee  on
   Investigations  and  Government  Operations  in accordance with Senate
   Rule 6, sec. 8 -- reported favorably from said committee,  ordered  to
   first  and  second  report,  ordered  to  a third reading, amended and
   ordered reprinted, retaining its place in the order of third reading
 
 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.  Subdivision  21-e of section 292 of the executive law, as
 amended by chapter 369 of the laws  of  2015,  is  amended  to  read  as
 follows:
   21-e.  The  term  "reasonable accommodation" means actions taken which
 permit an employee, prospective employee or member with a disability, or
 a pregnancy-related condition, OR WHO IS A CAREGIVER, to  perform  in  a
 reasonable  manner  the  activities  involved  in  the job or occupation
 sought or held and include, but are not  limited  to,  provision  of  an
 accessible  worksite,  acquisition or modification of equipment, support
 services for persons with impaired hearing or vision,  MODIFICATIONS  TO
 EXISTING  FACILITIES TO MAKE THEM MORE ACCESSIBLE, MODIFICATION OR RELO-
 CATION OF A WORKSTATION, MODIFICATIONS TO WORKPLACE  POLICIES  REGARDING
 FOOD  AND  DRINK,  MODIFICATIONS  TO  A UNIFORM OR DRESS CODE, TEMPORARY
 TRANSFER TO A LESS PHYSICALLY DEMANDING OR HAZARDOUS  POSITION,  ASSIST-
 ANCE  WITH  LIFTING  OR  OTHER MANUAL LABOR, ADDITIONAL OR MORE FLEXIBLE
 BREAK TIME, job restructuring [and], modified OR PART-TIME  work  sched-
 ules,  ALTERNATIVE  WORKING ARRANGEMENTS SUCH AS PART-YEAR EMPLOYMENT OR
 JOB SHARING, FLEXIBLE SCHEDULING OR  VARIABLE  HOURS,  ALTERNATIVE  WORK
 LOCATIONS  OR REASSIGNMENT TO ANOTHER LOCATION, REMOTE WORK OR TELEWORK,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07398-03-4
 S. 5465--A                          2
 
 CONSISTENT OR PREDICTABLE SCHEDULING, TIME OFF WORK SUCH  AS  TO  ATTEND
 MEETINGS  OR  APPOINTMENTS,  TEMPORARY  OR PERMANENT TRANSFER TO ANOTHER
 POSITION, OR LEAVE OF ABSENCE; provided, however, that such  actions  do
 not  impose  an undue hardship on the business, program or enterprise of
 the entity from which action is requested.
   § 2.  Section 292 of the executive law is  amended  by  adding  4  new
 subdivisions 42, 43, 44 and 45 to read as follows:
   42. THE TERM "CAREGIVER" MEANS A PERSON WHO PROVIDES THE DAILY CARE OR
 SUPERVISION  OF  A  MINOR  CHILD  OR A CARE RECIPIENT, OR ANY PERSON WHO
 CONTRIBUTES TO AND IS INVOLVED IN  THE  CARETAKING  RESPONSIBILITIES  OF
 SUCH  MINOR  CHILD OR CARE RECIPIENT. SUCH MINOR CHILD OR CARE RECIPIENT
 MAY, BUT NEED NOT, RESIDE IN THE HOUSEHOLD OF THE CAREGIVER.  THE  DEFI-
 NITION  OF  "CAREGIVER"  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.
   43. THE TERM "MINOR CHILD" MEANS A CHILD UNDER THE AGE OF EIGHTEEN.
   44.  THE TERM "CARE RECIPIENT" MEANS A COVERED FAMILY MEMBER WHO HAS A
 DISABILITY, INCLUDING A TEMPORARY DISABILITY, OR IS AGED  SIXTY-FIVE  OR
 OLDER,  AND  WHO RELIES ON THE CAREGIVER FOR MEDICAL CARE OR TO MEET THE
 NEEDS OF DAILY LIVING.
   45. THE TERM "COVERED FAMILY MEMBER" MEANS:
   (A) A CHILD, MEANING THE BIOLOGICAL, ADOPTIVE, OR FOSTER CHILD,  LEGAL
 WARD, A CHILD TO WHOM THE CAREGIVER STANDS IN LOCO PARENTIS, OR CHILD TO
 WHOM  THE CAREGIVER STOOD IN LOCO PARENTIS WHEN THE CARE RECIPIENT WAS A
 MINOR CHILD;
   (B) A PARENT,  MEANING  THE  BIOLOGICAL,  FOSTER,  STEP-  OR  ADOPTIVE
 PARENT,  OR  A LEGAL GUARDIAN OF THE CAREGIVER, OR A PERSON WHO STOOD IN
 LOCO PARENTIS WHEN THE CAREGIVER WAS A MINOR CHILD;
   (C) A SPOUSE OR DOMESTIC PARTNER;
   (D) A CHILD OF THE CAREGIVER'S SPOUSE OR DOMESTIC PARTNER;
   (E) A PARENT OF THE CAREGIVER'S SPOUSE OR DOMESTIC PARTNER;
   (F) A GRANDCHILD, MEANING A CHILD OF THE CAREGIVER'S CHILD;
   (G) A GRANDPARENT, MEANING A PARENT OF THE CAREGIVER'S PARENT;
   (H) A  SIBLING,  INCLUDING  HALF-SIBLINGS,  STEP-SIBLINGS,  FOSTER-SI-
 BLINGS, AND SIBLINGS RELATED THROUGH ADOPTION; AND
   (I)  ANY  OTHER  INDIVIDUAL RELATED BY BLOOD TO THE CAREGIVER OR WHOSE
 CLOSE ASSOCIATION WITH THE CAREGIVER  IS  THE  EQUIVALENT  OF  A  FAMILY
 RELATIONSHIP.
   §  3. Subdivision 1 of section 296 of the executive law, as separately
 amended by chapters 202 and 748 of the laws of 2022, is amended to  read
 as follows:
   1. It shall be an unlawful discriminatory practice:
   (a)  For  an  employer or licensing agency, because of an individual's
 age, race, creed, color, national  origin,  citizenship  or  immigration
 status,  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 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.
   (b)  For  an  employment agency to discriminate against any individual
 because of age, race, creed,  color,  national  origin,  citizenship  or
 immigration  status,  sexual orientation, gender identity or expression,
 military status, sex, disability, predisposing genetic  characteristics,
 familial  status,  marital status, STATUS AS A CAREGIVER, or status as a
 S. 5465--A                          3
 
 victim of domestic violence, in  receiving,  classifying,  disposing  or
 otherwise  acting  upon applications for its services or in referring an
 applicant or applicants to an employer or employers.
   (c)  For a labor organization, because of the age, race, creed, color,
 national origin, citizenship or immigration status, sexual  orientation,
 gender identity or expression, military status, sex, disability, predis-
 posing  genetic characteristics, familial status, marital status, STATUS
 AS A CAREGIVER, or status as a victim of domestic violence, of any indi-
 vidual, to exclude or to expel from its membership such individual or to
 discriminate in any way against  any  of  its  members  or  against  any
 employer or any individual employed by an employer.
   (d)  For  any  employer  or employment agency to print or circulate or
 cause to be printed or circulated any statement, advertisement or publi-
 cation, 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  age,  race,  creed, color, national origin, citizenship or immi-
 gration status, sexual orientation, gender identity or expression, mili-
 tary status,  sex,  disability,  predisposing  genetic  characteristics,
 familial  status,  marital status, STATUS AS A CAREGIVER, or status as a
 victim of domestic violence, or any intent to make any such  limitation,
 specification  or  discrimination, unless based upon a bona fide occupa-
 tional qualification; provided, however, that neither this paragraph nor
 any provision of this chapter or other law shall be construed to prohib-
 it the department of civil service or the department of personnel of any
 city containing more than one county from  requesting  information  from
 applicants  for  civil service examinations concerning any of the afore-
 mentioned  characteristics,  other  than  sexual  orientation,  for  the
 purpose  of conducting studies to identify and resolve possible problems
 in recruitment and testing of members of minority groups to  ensure  the
 fairest  possible  and  equal  opportunities for employment in the civil
 service for all persons, regardless of age, race, creed, color, national
 origin, citizenship or immigration status, sexual orientation or  gender
 identity  or  expression, military status, sex, disability, predisposing
 genetic characteristics, familial status, [or] marital status, OR STATUS
 AS A CAREGIVER.
   (e) For any employer,  labor  organization  or  employment  agency  to
 discharge,  expel  or  otherwise discriminate against any person because
 [he or she] SUCH PERSON has opposed any practices forbidden  under  this
 article or because [he or she] SUCH PERSON has filed a complaint, testi-
 fied or assisted in any proceeding under this article.
   (f) Nothing in this subdivision shall affect any restrictions upon the
 activities  of  persons  licensed  by  the  state  liquor authority with
 respect to persons under twenty-one years of age.
   (g) For an employer to compel an employee who is pregnant  to  take  a
 leave  of  absence,  unless  the employee is prevented by such pregnancy
 from performing the activities involved in the job or  occupation  in  a
 reasonable manner.
   (h)  For  an  employer,  licensing  agency, employment agency or labor
 organization to subject any individual to harassment because of an indi-
 vidual's age, race, creed, color, national origin, citizenship or  immi-
 gration status, sexual orientation, gender identity or expression, mili-
 tary  status,  sex,  disability,  predisposing  genetic characteristics,
 familial status, marital status, STATUS AS  A  CAREGIVER,  status  as  a
 victim  of  domestic violence, or because the individual has opposed any
 practices forbidden under this article or  because  the  individual  has
 S. 5465--A                          4
 
 filed  a  complaint,  testified or assisted in any proceeding under this
 article, regardless of  whether  such  harassment  would  be  considered
 severe  or  pervasive under precedent applied to harassment claims. Such
 harassment  is  an  unlawful discriminatory practice when it subjects an
 individual to inferior terms, conditions  or  privileges  of  employment
 because of the individual's membership in one or more of these protected
 categories.    The  fact  that  such individual did not make a complaint
 about the harassment to  such  employer,  licensing  agency,  employment
 agency  or labor organization shall not be determinative of whether such
 employer, licensing agency,  employment  agency  or  labor  organization
 shall  be  liable.  Nothing in this section shall imply that an employee
 must demonstrate the existence of an individual to whom  the  employee's
 treatment  must  be  compared.  It  shall  be  an affirmative defense to
 liability under this subdivision that the  harassing  conduct  does  not
 rise  above the level of what a reasonable victim of discrimination with
 the same protected  characteristic  or  characteristics  would  consider
 petty slights or trivial inconveniences.
   §  4.  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, LICENSING AGENCY, EMPLOYMENT AGENCY, OR LABOR ORGANIZATION TO REFUSE
 TO PROVIDE A REASONABLE ACCOMMODATION TO AN INDIVIDUAL WHO IS  KNOWN  TO
 BE  A CAREGIVER TO ENABLE THEM TO MEET THE NEEDS OF THEIR MINOR CHILD OR
 CARE RECIPIENT RELATED TO THE MINOR CHILD'S OR CARE RECIPIENT'S  HEALTH,
 SAFETY, EDUCATION, OR OTHER NEEDS OF DAILY LIVING.
   (B)  NOTHING  CONTAINED  IN  THIS  SUBDIVISION  SHALL  BE CONSTRUED TO
 REQUIRE PROVISION OF ACCOMMODATIONS WHICH CAN BE DEMONSTRATED TO  IMPOSE
 AN UNDUE HARDSHIP ON THE OPERATION OF AN EMPLOYER'S, LICENSING AGENCY'S,
 EMPLOYMENT AGENCY'S, OR LABOR ORGANIZATION'S BUSINESS, PROGRAM OR ENTER-
 PRISE.  IN MAKING SUCH A DETERMINATION WITH REGARD TO UNDUE HARDSHIP THE
 FACTS TO BE CONSIDERED INCLUDE:
   (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;
   (II) THE TYPE OF OPERATION WHICH THE BUSINESS, PROGRAM  OR  ENTERPRISE
 IS ENGAGED IN, INCLUDING THE COMPOSITION AND STRUCTURE OF THE WORKFORCE;
 AND
   (III) THE NATURE AND COST OF THE ACCOMMODATION NEEDED.
   §  5.  Subdivisions  2  and  3  of section 296-c of the executive law,
 subdivision 2 as separately amended by chapters 202 and 748 of the  laws
 of  2022,  paragraphs  a,  b  and  c of subdivision 2 and paragraph b of
 subdivision 3 as amended by chapter 305 of the laws of 2023, and  subdi-
 vision 3 as added by chapter 97 of the laws of 2014, are amended to read
 as follows:
   2. It shall be an unlawful discriminatory practice for an employer to:
   a.  refuse to hire or employ or to bar or to discharge from internship
 an intern or to discriminate against such intern in terms, conditions or
 privileges of employment as an intern because of the intern's age, race,
 creed, color, national origin, citizenship or immigration status, sexual
 orientation, gender identity or expression, military status, sex,  disa-
 bility,  predisposing  genetic  characteristics,  marital  status,  [or]
 status as a victim of domestic violence, OR STATUS AS A CAREGIVER;
   b. discriminate against an intern in receiving, classifying, disposing
 or otherwise acting upon applications for  internships  because  of  the
 intern's  age, race, creed, color, national origin, citizenship or immi-
 gration status, sexual orientation, gender identity or expression, mili-
 S. 5465--A                          5

 tary status,  sex,  disability,  predisposing  genetic  characteristics,
 marital  status, [or] status as a victim of domestic violence, OR STATUS
 AS A CAREGIVER;
   c.  print or circulate or cause to be printed or circulated any state-
 ment, advertisement or publication, or to use any  form  of  application
 for  employment  as  an intern or to make any inquiry in connection with
 prospective employment, which  expresses  directly  or  indirectly,  any
 limitation,  specification  or  discrimination  as  to age, race, creed,
 color, national origin, citizenship or immigration status, sexual orien-
 tation, gender identity or expression, military status, sex, disability,
 predisposing genetic characteristics, marital status [or], status  as  a
 victim  of domestic violence, OR STATUS AS A CAREGIVER, or any intent to
 make any such limitation, specification or discrimination, unless  based
 upon  a  bona  fide  occupational qualification; provided, however, that
 neither this paragraph nor any provision of this chapter  or  other  law
 shall  be  construed  to prohibit the department of civil service or the
 department of personnel of any city containing more than one county from
 requesting information from applicants for civil service internships  or
 examinations concerning any of the aforementioned characteristics, other
 than  sexual orientation, for the purpose of conducting studies to iden-
 tify and resolve possible problems in recruitment and testing of members
 of minority groups to ensure the fairest  possible  and  equal  opportu-
 nities  for  employment in the civil service for all persons, regardless
 of age, race, creed, color, national origin, citizenship or  immigration
 status, sexual orientation, military status, sex, disability, predispos-
 ing  genetic characteristics, marital status [or], status as a victim of
 domestic violence, OR STATUS AS A CAREGIVER;
   d. to discharge, expel or otherwise discriminate  against  any  person
 because  [he  or  she]  SUCH  PERSON has opposed any practices forbidden
 under this article or because [he  or  she]  SUCH  PERSON  has  filed  a
 complaint,  testified  or assisted in any proceeding under this article;
 or
   e. to compel an intern who is pregnant to take  a  leave  of  absence,
 unless  the  intern  is  prevented by such pregnancy from performing the
 activities involved in the job or occupation in a reasonable manner.
   3. It shall be an unlawful discriminatory practice for an employer to:
   a. engage in unwelcome sexual advances, requests for sexual favors, or
 other verbal or physical conduct of a sexual nature to an intern when:
   (1) submission to such conduct is made either explicitly or implicitly
 a term or condition of the intern's employment;
   (2) submission to or rejection of such conduct by the intern  is  used
 as the basis for employment decisions affecting such intern; or
   (3) such conduct has the purpose or effect of unreasonably interfering
 with the intern's work performance by creating an intimidating, hostile,
 or offensive working environment; or
   b.  subject an intern to unwelcome harassment based on age, sex, race,
 creed, color, sexual orientation, gender identity or  expression,  mili-
 tary  status,  disability, predisposing genetic characteristics, marital
 status, status as a victim of domestic violence, national  origin,  [or]
 citizenship  or  immigration  status, OR STATUS AS A CAREGIVER, or where
 such harassment has the purpose or effect  of  unreasonably  interfering
 with the intern's work performance by creating an intimidating, hostile,
 or offensive working environment.
   §  6.  This  act shall take effect on the ninetieth day after it shall
 have become a law.