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The New York City Human Rights Law (NYCHRL) forbids employment discrimination on the basis of a number of protected characteristics, such as age, race, creed, color, national origin, gender (including gender identity and sexual harassment), disability, marital status, partnership status, sexual orientation, alienage, and citizenship status. The NYCHRL applies to employers with four or more employees. On Jan. 5, 2016, New York City Mayor Bill de Blasio signed legislation expanding the NYCHRL to add “caregiver status” as an additional protected category for which employment discrimination is prohibited. The new law goes into effect beginning May 4, 2016, to prohibit employment discrimination against employees caring for a minor child or an individual with a disability.
Under the amendment, “caregiver” is defined as “a person who provides direct and ongoing care for a minor child or care recipient.” “Care recipient” is defined as “a person with a disability who: (i) is a covered relative, or a person who resides in the caregiver’s household; and (ii) relies on the caregiver for medical care or to meet the needs of daily living.” “Covered relatives” under the amendment include children (adopted, biological or foster), spouses, domestic partners, parents, siblings, grandchildren, grandparents, children or parents of the caregiver’s spouse or domestic partner, or any individuals in a familial relationship with the caregiver, as defined by the New York City Commission on Human Rights.
Because the definition of “covered relatives” is broad, has not yet been interpreted, and is ultimately left to the discretion of the commission, it is conceivable that the amendment could cover almost any other member of an employee’s family. The penalty for violation of the NYCHRL is a civil penalty of a maximum of $50,000, with additional penalties of up to $100 per day for each day that the violation continues. The City Commission on Human Rights is expressly authorized to adopt rules to implement the amendment’s provisions. The amendment is aimed at protecting the city’s family caregivers, who provide an estimated $31 billion of unpaid care per year for an increasingly large population.
New York City employers should review their handbooks and disciplinary policies to ensure that they will be in compliance with the new requirements of the amended NYCHRL. Employers should also carefully review supervisor decisions to ensure this protected characteristic was not taken into account when making a decision about an adverse employment action. In addition, requests for accommodations or leave to care for a covered relative or person who resides in the employee’s household, should be carefully reviewed to determine whether the employee qualifies for protection under this amended law. Additionally, employers who do not already do so should consider implementing training programs for managers and supervisors to ensure their familiarity with the law; it is especially critical to communicate the contents of the new amendment to managers and supervisors with the authority to make employment decisions. Because the amendment providing protection to caregivers is so new, very little guidance has been issued on it, but we anticipate more clarity on the amendment’s requirements will emerge with time. As such, New York City employers should stay tuned for updates to ensure compliance with the NYCHRL in the future.
Kevin J. Smith and Lindsay R. Colvin are attorneys in the New York City office of Sheppard Mullin. Republished with permission. © 2016 Sheppard Mullin. All rights reserved.
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