What New York City Employers Need to Know about a Recent Amendment to the City’s Human Rights Law

Effective May 4, 2016, “caregiver” has been added to the list of protected classifications under the New York City Human Rights Law (NYCHRL). This amendment is designed to protect employees and applicants for employment from discrimination because of their actual or perceived status as a caregiver.

The NYCHRL defines a number of protected classes, including, but not limited to, gender, sexual orientation, partnership status, national origin, disability, and alienage and citizenship status. These protected classes are covered under section 8-107 of the law, which prohibits employment discrimination.

The law will now allow employees to sue employers who have four or more employees for discrimination on the basis of their “actual or perceived” status as a caregiver of dependent children, parents or other covered family members.

What is the definition of a caregiver?
A caregiver, under the law, is defined as “a person who provides direct and ongoing care for a minor child or care recipient.” A minor child is anyone under 18 years of age, while a “care recipient” is defined as a person with a disability who is:

• A “covered relative:” This is broadly defined as a caregiver’s child, spouse, domestic partner, parent (including foster, step, adoptive parents and legal guardians), sibling, grandchild or grandparent. This could also refer to the child or parent of the caregiver’s spouse or domestic partner or any other individual in a familial relationship with the caregiver as designated by the rules of the New York City Commission on Human Rights.

• A person who resides in the caregiver’s household.

• Someone who relies on the caregiver for medical care or to meet the needs of daily living.

Employers must understand that because the definition of a “covered relative” is so broad, it may be left to interpretation by the commission, and could be expanded to include other members of an employee’s family. The amendment, however, does not protect non-family member caregivers or home companions employed to work or live in the home of the person to whom they provide ongoing care.

What does this mean for New York City employers?
Employers cannot discriminate on the basis of an employee’s caregiver status in decisions as to hiring, compensation or the terms and conditions of employment. Employment agencies and labor organizations are similarly prohibited.

This means covered employers, employment agencies and labor unions are precluded from refusing to hire or from rejecting, excluding, terminating, demoting, refusing to promote or otherwise treating such individuals unfavorably in the terms and conditions of employment because of their caregiver responsibilities.

Further, the commission may interpret the law as requiring employers to carefully consider caregivers’ scheduling requests as a reasonable accommodation if such does not prevent the employee from performing his or her essential job duties. Even if an employee has exhausted his or her sick or FMLA leave—or is not eligible for such leave—the law may now protect an employee who is a caregiver and needs to take absences for work in order to perform caregiver duties.

The commission has not issued formal enforcement guidance or rule-making proceedings on the new amendment, so we can expect more clarity on its interpretation in the near future.

What is the penalty for non-compliance?
The penalty for violating the New York City Human Rights Law 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.

If you are a NYC business owner or have employees in NYC, contact Steve Edney at 203-388-0932/steve.edney@trinet.com for help in staying compliant with this and other employment laws and regulations that affect you.

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