NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4300
SPONSOR: Steck 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 disabil-
ity 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 reason-
able 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 disabili-
ties 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. 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,
§§ . 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 accom-
modation to persons with disabilities as does Federal law.
LEGISLATIVE HISTORY:
2021/22: A3340 referred to governmental operations
2019/20: A297 referred to governmental operations
2017/18: A2675 referred to governmental operations
2015/16: A740 referred to governmental operations
2014:A8401 referred to governmental operations
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
Effective immediately.
STATE OF NEW YORK
________________________________________________________________________
4300
2023-2024 Regular Sessions
IN ASSEMBLY
February 14, 2023
___________
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 amended by chapter 369 of the laws of 2015, is amended to read as
3 follows:
4 21-e. (a) The term "reasonable accommodation" means actions taken
5 which permit an employee, prospective employee or member with a disabil-
6 ity, or a pregnancy-related condition, to perform in a reasonable manner
7 the activities involved in the job or occupation sought or held and
8 include, but are not limited to, provision of an accessible worksite,
9 acquisition or modification of equipment, support services for persons
10 with impaired hearing or vision, job restructuring and modified work
11 schedules; provided, however, that such actions do not impose an undue
12 hardship on the business, program or enterprise of the entity from which
13 action is requested.
14 (b) The term "reasonable accommodation" shall also mean an unpaid
15 leave of absence to allow an employee to recover from an episodic
16 manifestation of a disability, provided that the employee provides the
17 employer with medical certification that such leave of absence is
18 medically necessary for that purpose and advises the employer of the
19 approximate date the employee will be able to return to work. An indefi-
20 nite leave of absence is not permissible under this subdivision.
21 (c) To determine the appropriate reasonable accommodation, it may be
22 necessary for the covered entity to initiate an informal, interactive
23 process with the individual with a disability in need of accommodation
24 aimed at defining the employee's precise needs and minimizing any impact
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05940-01-3
A. 4300 2
1 of the accommodation on the employee's work. This process should identi-
2 fy the precise limitations resulting from the disability and potential
3 reasonable accommodations that could overcome those limitations, includ-
4 ing the length of any leave of absence provided for in paragraph (b) of
5 this subdivision. As part of the interactive process, consistent with
6 the purpose of the interactive process, and to facilitate agreement
7 between the employer and the employee as to the reasonable accommo-
8 dation, the employer may request (1) to have the employee's physician
9 respond in a reasonable time to a reasonable number of non-burdensome
10 questions concerning the employee's medical condition or (2) be examined
11 by a medical doctor of the employer's choosing.
12 § 2. This act shall take effect immediately.
