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A02003 Summary:

Amd §296, Exec L
Requires employers to engage in a good faith cooperative dialogue with employees who request accommodation due to a religious practice or observance.
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A02003 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                   IN ASSEMBLY
                                    January 23, 2023
        Introduced  by  M. of A. FALL -- read once and referred to the Committee
          on Governmental Operations
        AN ACT to amend the executive law, in relation to requiring employers to
          engage in a good faith cooperative dialogue with employees who request
          accommodation due to a religious practice or observance

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  Subdivision  10  of  section 296 of the executive law, as
     2  amended by chapter 166 of the laws of 2000, paragraph (a) as amended  by
     3  chapter  154 of the laws of 2019, and paragraph (b) as amended and para-
     4  graphs (c) and (d) as added by chapter 539  of  the  laws  of  2002,  is
     5  amended to read as follows:
     6    10.  (a)  It  shall  be  an  unlawful  discriminatory practice for any
     7  employer, or an employee or agent thereof, to impose upon a person as  a
     8  condition  of obtaining or retaining employment, including opportunities
     9  for promotion, advancement or transfers, any terms  or  conditions  that
    10  would require such person to violate or forego a sincerely held practice
    11  of  his  or her religion, including but not limited to the observance of
    12  any particular day or days or any portion thereof as a sabbath or  other
    13  holy day or religious holiday in accordance with the requirements of his
    14  or  her  religion or the wearing of any attire, clothing, or facial hair
    15  in accordance with the requirements of  his  or  her  religion,  unless,
    16  after  engaging  in a bona fide effort which shall include a cooperative
    17  dialogue, the employer demonstrates that  it  is  unable  to  reasonably
    18  accommodate  the  employee's  or  prospective  employee's sincerely held
    19  religious observance or practice without undue hardship on  the  conduct
    20  of  the  employer's business. Notwithstanding any other provision of law
    21  to the contrary, an employee shall not be entitled to premium  wages  or
    22  premium  benefits  for work performed during hours to which such premium
    23  wages or premium benefits would ordinarily be applicable, if the employ-
    24  ee is working during such hours only as an accommodation to his  or  her
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 2003                             2
     1  sincerely  held  religious  requirements.  Nothing  in this paragraph or
     2  paragraph (b) of this subdivision shall  alter  or  abridge  the  rights
     3  granted  to an employee concerning the payment of wages or privileges of
     4  seniority accruing to that employee.
     5    (b)  Except  where  it would cause an employer to incur an undue hard-
     6  ship, no person shall be required to be present or remain at his or  her
     7  place of employment during any day or days or portion thereof that, as a
     8  requirement  of  his  or  her religion, he or she observes as his or her
     9  sabbath or other holy day or religious holiday, including  a  reasonable
    10  time prior and subsequent thereto for travel between his or her place of
    11  employment  and his or her home, provided however, that any such absence
    12  from work shall, wherever practicable [in the  reasonable  judgment  of]
    13  and  as  agreed upon between the employer and the employee pursuant to a
    14  cooperative dialogue, be made up by an equivalent  amount  of  time  and
    15  work at some other mutually convenient time, or shall be charged against
    16  any  leave  with pay ordinarily granted, other than sick leave, provided
    17  further, however, that any such absence not so made up or  charged,  may
    18  be treated by the employer of such person as leave taken without pay.
    19    (c) It shall be an unlawful discriminatory practice for an employer to
    20  refuse  to permit an employee to utilize leave or to refuse to engage in
    21  a cooperative dialogue requested by an employee, as  provided  in  para-
    22  graph (b) of this subdivision, solely because the leave will be used for
    23  absence from work to accommodate the employee's sincerely held religious
    24  observance or practice.
    25    (d)  As  used  in this subdivision: (1) "undue hardship" shall mean an
    26  accommodation requiring significant expense or difficulty  (including  a
    27  significant  interference  with  the  safe or efficient operation of the
    28  workplace or a violation of a bona fide seniority system). Factors to be
    29  considered in determining whether the accommodation constitutes an undue
    30  economic hardship shall include, but not be limited to:
    31    (i) the identifiable cost of the accommodation, including the costs of
    32  loss of productivity and of retaining  or  hiring  employees  or  trans-
    33  ferring  employees from one facility to another, in relation to the size
    34  and operating cost of the employer;
    35    (ii) the number of individuals who will need the  particular  accommo-
    36  dation to a sincerely held religious observance or practice; and
    37    (iii)  for  an  employer with multiple facilities, the degree to which
    38  the geographic separateness or administrative or fiscal relationship  of
    39  the facilities will make the accommodation more difficult or expensive.
    40    Provided,  however, an accommodation shall be considered to constitute
    41  an undue hardship if it will result in the inability of an  employee  to
    42  perform  the  essential  functions of the position in which he or she is
    43  employed.
    44    (2) "premium wages" shall include overtime pay and  compensatory  time
    45  off,  and additional remuneration for night, weekend or holiday work, or
    46  for standby or irregular duty.
    47    (3) "premium benefit"  shall  mean  an  employment  benefit,  such  as
    48  seniority, group life insurance, health insurance, disability insurance,
    49  sick  leave,  annual leave, or an educational or pension benefit that is
    50  greater than the employment benefit due the employee for  an  equivalent
    51  period of work performed during the regular work schedule of the employ-
    52  ee.
    53    (4) "cooperative dialogue" shall mean the process by which an employer
    54  and  employee  engage  in good faith written or oral dialogue concerning
    55  such employee's needs for accommodation regarding his or her  observance
    56  of  a sincerely held practice of his or her religion, potential accommo-

        A. 2003                             3
     1  dations that may address such employee's accommodation  needs,  and  the
     2  difficulties  that  such  potential  accommodations  may  pose  for such
     3  employer.
     4    In the case of any employer other than the state, any of its political
     5  subdivisions  or  any  school district, this subdivision shall not apply
     6  where the uniform application of terms and conditions of  attendance  to
     7  employees is essential to prevent undue economic hardship to the employ-
     8  er.  In any proceeding in which the applicability of this subdivision is
     9  in issue, the burden of proof shall be upon the employer. If  any  ques-
    10  tion  shall arise whether a particular position or class of positions is
    11  excepted from this subdivision by this paragraph, such question  may  be
    12  referred in writing by any party claimed to be aggrieved, in the case of
    13  any position of employment by the state or any of its political subdivi-
    14  sions,  except  by any school district, to the civil service commission,
    15  in the case of any position of employment by any school district, to the
    16  commissioner of education, who shall determine such question and in  the
    17  case  of any other employer, a party claiming to be aggrieved may file a
    18  complaint with the division pursuant to this article. Any such  determi-
    19  nation by the civil service commission shall be reviewable in the manner
    20  provided  by  article  seventy-eight of the civil practice law and rules
    21  and any such determination by the commissioner  of  education  shall  be
    22  reviewable  in the manner and to the same extent as other determinations
    23  of the commissioner under section three hundred  ten  of  the  education
    24  law.
    25    § 2. This act shall take effect immediately.
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