Seyfarth Synopsis: The New York City Council voted to expand the anti-discrimination and retaliation provisions of the Human Rights Law to freelancers and independent contractors. The bill is awaiting the Mayor’s signature. New York City employers should also be aware that the law prohibiting retaliation against anyone who requests a reasonable accommodation goes into effect November 11, 2019. Finally, effective November 18, 2019, New York State will require employers to provide reasonable accommodations for employees who are victims of domestic violence.
New York employers should be aware of the following recent new developments:
- First, the New York City Council voted to include freelancers and independent contractors under the expansive New York City Human Rights Law (“NYCHRL”). It is likely Mayor DiBlasio will sign the bill, which will be effective 90 days after it becomes law.
- Second, New York City has banned retaliation against individuals who request a reasonable accommodation, codifying the principle that a request for reasonable accommodation is a “protected activity” under the law, meaning it can be a basis for a retaliation claim.
- Third, victims of domestic violence now have their own protected category under an amendment to the New York State Human Rights Law (“NYSHRL”), which applies to nearly all employers in the state.
NYC Council Votes to Expand Employment Protections to Independent Contractors and Freelancers
In NYC, even more workers have protections under the NYCHRL, as the City Council has voted to expand such protections to independent contractors and freelancers. This constitutes a major shift, even in NYC, where the law is “liberally construed.” The same bill also clarifies how to determine whether an employer has the requisite four or more employees for purposes of coverage under the NYCHRL, and that an employer’s family member who is an employee is included in that count.
NYC Codifies Request for Reasonable Accommodation as Protected Activity
Effective November 11, a request for a reasonable accommodation under the NYCHRL will be considered “protected activity” for purposes of a retaliation claim. With this amendment, the City affirms 2016 EEOC Enforcement Guidance which provides a reasonable accommodation is protected activity. Some courts have held that a request for reasonable accommodation is not protected activity under the NYCHRL, including the New York State Supreme Court, Appellate Division (the state’s intermediate appellate court), however, this amendment will overrule those decisions.
Domestic Violence Victim Protections
Under the NYSHRL, beginning November 18, employers cannot base employment decisions or discriminate against victims of domestic violence in terms, conditions, or privileges of employment. The law links the definition of a victim of domestic violence to that of the Domestic Violence Protection Act, which now includes acts by a family or household member such as identity theft, grand larceny or coercion, among other crimes, that cause physical or emotional harm. Previously, employers could not discriminate based upon “victim status,” but the law did not specifically mention domestic violence. Employers cannot include in any advertisement or publication or make any inquiry which directly or indirectly discriminates or expresses any preference as to status as a victim of domestic violence, but may include a statement for purposes of providing assistance to, or a reasonable accommodation for, a victim of domestic violence.
Notably, employers must provide a reasonable accommodation in the form of unpaid leave for employees who are victims of domestic violence when the employee must be absent from work for a reasonable amount of time, unless the absence would cause an “undue hardship” to the employer. An “undue hardship” is limited to consideration of factors such as the size of the employer, number of type of facilities, and budget, and type of operation, including the composition and structure of the employee population.
However, employers may require employees to use paid time off (such as NYC Earned Safe and Sick Time) for this purpose, unless otherwise provided in a collective bargaining agreement or by existing policy. During any absence, employees are entitled to continued health insurance coverage.
Employees may request an accommodation with a leave of absence for several prescribed reasons under the statute, including to seek medical attention or psychological care, legal or victims’ services, in connection with domestic violence. If the employee seeks leave on behalf of a child who is a victim of domestic violence, in order to request the reasonable accommodation, the employee may not be the perpetrator of domestic violence. Moreover, if an employee has a physical or mental disability as a result of domestic violence, they must be treated in accordance with applicable law for employees with disabilities, including providing reasonable accommodations for those disabilities.
Where feasible, employees must provide reasonable advanced notice to employers before taking leave. Employers may request certification of the need for leave if employees do not provide reasonable advanced notice. The certification may consist of a police report, court order or other evidence from a court or prosecutor that the employee appeared in court, or documentation from a health care provider or victims’ advocate.
What’s Next for Employers?
Employers should be aware of these new obligations and consider revising their policies and training human resources professionals and supervisors so that they appropriately handle any requests for accommodation or complaints under the law.