In Absence Management, Accomodation, FMLA, FMLA Updates, News

 

Effective November 18, 2019 a new law will go in to effect in the state of New York to offer reasonable accommodations to victims of domestic violence. Thank you, Governor Andrew Cuomo! This new law enhances New York Penal Law § 215.14 which required employers, with prior day notification, to allow time off for victims or witnesses to pursue legal action related to domestic violence.

This new law makes it an unlawful discriminatory practice for an employer to refuse to provide a reasonable accommodation, including time away from work, when the employee is a victim of domestic violence.

Although the law specifically calls out the following as reasons to be off work, a reasonable accommodation may also include other modifications including, but not limited to, the change of a work phone number or a temporary relocation of the employee’s workspace.  

  1. Seeking medical attention for injuries;
  2. Obtaining services from a domestic violence shelter, program, or rape crisis center;
  3. Obtaining psychological counseling;
  4. Participating in safety planning and taking actions to increase safety from future domestic violence, including temporary or permanent relocation; and
  5. Obtaining legal services, appearing in court in relation to the incident, and assisting in the prosecution of the offense.

Time off is generally unpaid, but the employer may require the time off be taken concurrently with another paid time off program.

A “victim of domestic violence” is defined to mean any person over the age of sixteen, any married person, or any parent accompanied by a minor child when they or the child is a victim of a criminal act committed by a family or household member. Covered criminal acts may include harassment, disorderly conduct, sexual misconduct, sexual abuse, stalking, menacing, kidnapping, assault, strangulation, identity theft, attempted murder, and other violations of the New York penal code. The acts must have resulted in actual or a substantial risk of physical or emotional harm to the person or child.

To define “Domestic Violence” the family or household member and the victim must be/have:

  • legally married to each other;
  • formerly married to one another regardless of whether they still live together;
  • a child in common;
  • related by blood or affinity;
  • unrelated to each other but who are continually or at regular intervals living in the same household (or have done so in the past; or
  • in an intimate relationship, regardless of whether living together.

Employees must provide reasonable advance notice of the need for a domestic violence-related absence unless advance notice is not feasible. Without advanced notice, the employer may request certification to support the need for leave. Certification could include documents such as an HCPC form, court papers, police reports, etc. 

As with most domestic violence and victims of crime laws, New York Domestic Violence could run concurrently with Federal FMLA if other conditions were met that constituted a serious health condition as defined under the law. 

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