Our colleague  at Epstein Becker Green has a post on the Health Employment and Labor blog that will be of interest to our readers in the retail industry: “New York City Council Passes Bills Establishing Procedures on Flexible Work Schedules and Reasonable Accommodation Requests.”

Following is an excerpt:

The New York City Council recently passed two bills affecting New York City employers and their employees. The first bill, Int. No. 1399, passed by the Council on December 6, 2017, amends Chapter 12 of title 20 of the City’s administrative code (colloquially known as the “Fair Workweek Law”) to include a new subchapter 6 to protect employees who seek temporary changes to work schedules for personal events.  Int. No. 1399 entitles New York City employees to request temporary schedule changes twice per calendar year, without retaliation, in certain situations, e.g., caregiver emergency, attendance at a legal proceeding involving subsistence benefits, or safe or sick time under the New York City administrative code.  The bill establishes procedures for employees to request temporary work schedule changes and employer responses.  Exempt from the bill are employees: (i) who are covered by a collective bargaining agreement; (ii) who have been employed for fewer than 120 days; (iii) who work less than 80 hours in the city in a calendar year; and (iv) who work in the theater, film, or television industries. …

Read the full post here.

The New York City’s Human Rights law (“NYCHRL”) prohibits employment discrimination against specified protected classes of employees and applicants including:

Employers Should Care About This: New York City’s Amendment on Caregiver Discrimination race, color, creed, age, national origin, alienage or citizenship status, gender, sexual orientation, disability, marital status, partnership status, any lawful source of income, status as a victim of domestic violence or status as a victim of sex offenses or stalking, whether children are, may be or would be residing with a person or conviction or arrest record.

If this list wasn’t long enough, on May 4, 2016, NYCHRL will add “caregivers” to the protected classes including, anyone who provides ongoing medical  or “daily living” care for a minor, any disabled relative or disabled non-relative who lives in the caregiver’s household.

The law defines “caregiver” as a person who provides direct and ongoing care for a minor child or a person with a disability who: (1) is a covered relative, or a person who resides in the caregiver’s household; and (2) relies on the caregiver for medical care or to meet the needs of daily living.

“Covered relatives” include children (adopted, biological or foster), spouses, domestic partners, parents, siblings, grandchildren, grandparents, children or parents of the caregiver’s spouse or domestic partner, or any individuals in a “familial relationship” with the caregiver.

The NYCHRL prohibits employers from discriminating against caregivers with respect to hiring, compensation, or the terms and conditions of employment. Thus, employers should not ask applicants about their status as a caregiver when making hiring decisions.

Importantly, employers may still (and should!) hold caregiver employees to the same attendance and performance standards as other employees.  Caregivers must still be able to perform the essential functions of their job, notwithstanding their role as a caregiver.

The law does not contain an affirmative requirement to accommodate caregivers, but employers should carefully consider any employee’s requests for time off due to caregiving responsibilities to ensure responses to such requests are being applied consistently and in accordance with any other potentially applicable laws. For example, caregiver employees may be eligible to take sick time under the New York City Earned Sick Time Act to fulfill caregiver duties for medical needs. In addition caregivers caring for medical needs may be entitled to Family and Medical Leave Act benefits.  Employers must also think about how their policies and practices affect caregivers and train managers on the new protections.

The New York Human Rights Commission has not yet issued formal guidance regarding this amendment. Until the Commission does so, the potential reach of the law remains unknown.  But employers should brace themselves for broad interpretations of this law and stay tuned to this blog for updates.