BILL NO A00740
SAME AS No same as
SPONSOR Steck
COSPNSR
MLTSPNSR
Amd S292, Exec L
Establishes unpaid leave of absence as a reasonable accommodation under the
state's human rights law.
BILL NUMBER:A740
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
disability 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 reasonable 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
disabilities 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. S 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, SS 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
accommodation 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.
S T A T E O F N E W Y O R K
________________________________________________________________________
740
2015-2016 Regular Sessions
I N A S S E M B L Y
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
law
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.
LBD04408-01-5
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 S 2. This act shall take effect immediately.
