Caregiver Amendment New York City Human Rights Law
As many will note, there is a significant trend to expand worker’s rights recently, especially on the local level. Employers need to be kept up to date by their counsel as new laws come into existence that might impact the employment relationship. Such is the bill just signed into law by New York City Mayor Bill de Blasio amending the New York City Human Rights Law to extend non-discrimination protections to “caregivers.” This amendment will now allow employees to sue employers for discrimination on the basis of their “actual or perceived” status as a caregiver of dependent children, parents, or other family members should the employer fail to provide reasonable accommodations to the “caregiver” when the employer is on notice as to the employees “caregiver” status.
Let’s consider the terms we are dealing with here. An employee is covered under the law if he or she qualifies as a “caregiver,” which means that individual provides “direct and ongoing” care for a minor child or a “care recipient.” A care recipient is defined as a “person with a disability” who is either a “covered relative” or a “person who resides in the caregiver’s household” and who relies on the “caregiver” for medical care or to meet the needs of daily living.
Some are concerned that claims based on discrimination for a caregiver that qualifies due to obligations to care for a minor child are potentially limitless, as the statute is broad and does not place restrictions on the status of the minor child, such as whether the care must be for a sick child or if care for a healthy child would also qualify. Indeed, the definition of “care recipient” will need to be elaborated based on determinations by the New York City Human Rights Commission and the courts.
Most likely the “disability” of a “care recipient” will be interpreted like any other disability under the NYCHRL. According to the NYCHRL, The term “disability” means any physical, medical, mental or psychological impairment, or a history or record of such impairment. The term “physical, medical, mental, or psychological impairment” means “an impairment of any system of the body; including, but not limited to: the neurological system; the musculoskeletal system; the special sense organs and respiratory organs, including, but not limited to, speech organs; the cardiovascular system; the reproductive system; the digestive and genito-urinary systems; the hemic and lymphatic systems; the immunological systems; the skin; and the endocrine system; or a mental or psychological impairment. The NYCHRL goes on to state that “in the case of alcoholism, drug addiction or other substance abuse, the term “disability” shall only apply to a person who is recovering or has recovered and currently is free of such abuse, and shall not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.
The law also protects an employee who seeks reasonable accommodation to care for “a covered relative.” A “covered relative includes the caregiver’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, or child or parent of the caregiver’s spouse or domestic partner, or “any other individual in a familial relationship…as designated by the rules of the Commission.” The definition of “covered relative” is left open to interpretation by the NYC Human Rights Commission and will likely be expanded upon to include other of the employee’s family members.
As an employer, it is important that you be aware of this change to the NYCHRL. Employers should take precautions and carefully consider requests by employees for reasonable accommodations or for leave to care for a covered individual. Even though an employee may have used all of their sick days or FMLA leave, this new law may now provide some protections for absences from work as an accommodation due to the employee’s status as a “caregiver.” Indeed, a request for time off under FMLA or otherwise with enough specificity as to the nature of the request (i.e.: for caregiver purposes, tending to a sick child, dying parent, etc.) may constitute notice to the employer of an employee’s caregiver status. That notice combined with a denial of a reasonable accommodation is where an employer can find themselves in trouble under this new law.
Obviously this law is brand new and not yet being applied, so the practical implications and the true scope of its application remain to be seen. But employers need to be aware of the changing legal landscape. This new law will take effect on May 4, 2016.