A00740 Summary:

Amd S292, Exec L
Establishes unpaid leave of absence as a reasonable accommodation under the state's human rights law.
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A00740 Actions:

01/07/2015referred to governmental operations
01/06/2016referred to governmental operations
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A00740 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
  TITLE OF BILL: An act to amend the executive law, in relation to unpaid leave of absence as a reasonable accommodation under the state's human rights law   PURPOSE OR GENERAL IDEA OF BILL: This bill would make New York law consistent with the Americans with Disabilities Act (ADA).   SUMMARY OF PROVISIONS: (a) This bill defines reasonable accommodation to include an unpaid leave of absence necessary to permit a person with a qualifying disabil- ity to recover from an episodic manifestation of a disability, provided he or she is able to give an employer reasonable medical notice of when such employee will return to work. For example, a person having coronary bypass surgery could take an unpaid leave of absence to recover from surgery. In another example from an actual case decided under New York law, a woman with an ectopic pregnancy who was hemorrhaging and removed from work in an ambulance was unable to obtain protection under the NYSHRL because she could not immediately return to work, but was able to vindicate her rights under the ADA. (b) The bill requires an interactive process between employer and employee so that the impact of the reason- able accommodation on the employee's work is minimized. The "interactive process" is a requirement under ADA. The NYSHRL already requires, like ADA, that a reasonable accommodation not impose "undue hardship" on an employer's business.   JUSTIFICATION: The New York Court of Appeals recently construed the language of the New York State Human Rights Law (NYSHRL) as denying persons with disabili- ties unpaid leave as a reasonable accommodation (while at the same time ruling that the New York City Human Rights Law did provide such leave as a reasonable accommodation). Romanello v Intesa Sanpaolo, S.p.A., 2013 N.Y. LEXIS 2755 (N.Y. Oct. 10, 2013). The Equal Employment Opportunity Commission has construed the Americans with Disabilities Act (ADA) as providing for leave of absence as a reasonable accommodation. 29 C.F.R. Part 1630 App. § 1630.2(o). The reason for the difference as follows: The NYSHRL was originally passed before the ADA and did not include the concept of reasonable accommodation. In 1997, effective January 1, 1998, the NYSHRL was amended to add reasonable accommodation. L 1997, ch 269, §§ 1, 5). See Martinez-Tolentino v. Buffalo State College, 277 A.D.2d 899, 715 N.Y.S.2d 554 (4th Dept. 2000). Nevertheless, earlier language remained in the law that required a person to be actually working in order to claim the benefit of the law. The legislative history shows that the language was never intended by this Legislature to diminish the rights of disabled persons in comparison to Federal law, and in fact the Legislature intended to equalize benefits under both State and Federal Law, but pre-amendment Court decisions were never revisited, leading to an erroneous interpretation of State law. This bill makes certain that the NYSHRL lives up to its promise to provide the same reasonable accom- modation to persons with disabilities as does Federal law.   LEGISLATIVE HISTORY: Leave of absence has not been explicitly addressed in prior legislation.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: Effective immediately.
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A00740 Text:

                STATE OF NEW YORK
                               2015-2016 Regular Sessions
                   IN ASSEMBLY
                                     January 7, 2015
        Introduced  by M. of A. STECK -- read once and referred to the Committee
          on Governmental Operations
        AN ACT to amend the executive  law,  in  relation  to  unpaid  leave  of
          absence  as  a reasonable accommodation under the state's human rights
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  Subdivision  21-e of section 292 of the executive law, as
     2  added by chapter 269 of the laws of 1997, is amended to read as follows:
     3    21-e. (a) The term  "reasonable  accommodation"  means  actions  taken
     4  which permit an employee, prospective employee or member with a disabil-
     5  ity to perform in a reasonable manner the activities involved in the job
     6  or  occupation  sought  or  held  and  include,  but are not limited to,
     7  provision of an accessible  worksite,  acquisition  or  modification  of
     8  equipment, support services for persons with impaired hearing or vision,
     9  job  restructuring  and modified work schedules; provided, however, that
    10  such actions do not impose an undue hardship on the business, program or
    11  enterprise of the entity from which action is requested.
    12    (b) The term "reasonable accommodation"  shall  also  mean  an  unpaid
    13  leave  of  absence  to  allow  an  employee  to recover from an episodic
    14  manifestation of a disability, provided that the employee  provides  the
    15  employer  with  medical  certification  that  such  leave  of absence is
    16  medically necessary for that purpose and advises  the  employer  of  the
    17  approximate date the employee will be able to return to work. An indefi-
    18  nite leave of absence is not permissible under this subdivision.
    19    (c)  To  determine the appropriate reasonable accommodation, it may be
    20  necessary for the covered entity to initiate  an  informal,  interactive
    21  process  with  the individual with a disability in need of accommodation
    22  aimed at defining the employee's precise needs and minimizing any impact
    23  of the accommodation on the employee's work. This process should identi-
    24  fy the precise limitations resulting from the disability  and  potential
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 740                              2
     1  reasonable accommodations that could overcome those limitations, includ-
     2  ing  the length of any leave of absence provided for in paragraph (b) of
     3  this subdivision. As part of the interactive  process,  consistent  with
     4  the  purpose  of  the  interactive  process, and to facilitate agreement
     5  between the employer and the employee  as  to  the  reasonable  accommo-
     6  dation,  the  employer  may request (1) to have the employee's physician
     7  respond in a reasonable time to a reasonable  number  of  non-burdensome
     8  questions concerning the employee's medical condition or (2) be examined
     9  by a medical doctor of the employer's choosing.
    10    § 2. This act shall take effect immediately.
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