A “minor child” is defined as a child, whether a biological, adopted or foster child, a legal ward, or a child of a caregiver standing in loco parentis, who is under the age of 18. A “care recipient” is defined as a person with a disability who: (i) is a covered relative, or person who resides in the caregiver’s household; and (ii) relies on the caregiver for medical care or to meet the needs of daily living.” A “covered relative” is defined to include a caregiver’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, or the child or parent of the caregiver’s spouse or domestic partner, or any other individual in a familial relationship with the caregiver as defined by the rules of the Commission on Human Rights.

The law, however, does not define the term “direct and ongoing care,” leaving its meaning susceptible to undoubtedly conflicting interpretations amongst employers and employees. This also makes it particularly difficult for employers to know what employees may be entitled to protections under this new law, and the answer depends on information employers traditionally consider the employee’s personal business.

The question of exactly what employees are covered by this new law aside, the even bigger question for employers is just what protections does this law afford caregivers? At a minimum, the law prohibits employers from taking adverse employment actions, retaliating against, or treating these employees disparately because they have caregiver responsibilities. But does this law imposes any affirmative obligations on employers to make special accommodations for employees with caregiver responsibilities? For example, while it is clear that employers cannot deny a caregiver’s request for time off if such requests are regularly granted to similarly situated employees without caregiver responsibilities, it is not clear whether employers now have an obligation to grant a caregiver’s request for time off that relates to his/her caregiving responsibilities that would otherwise be denied for an employee without caregiving responsibilities. What about where a caregiver’s essential job responsibilities include working unpredictable hours, or late nights, if necessary? Does an employer now have to alleviate the employee from these responsibilities if they conflict with the employee’s caregiving responsibilities?

The New York City Commission on Human Rights (the “Commission”) has publicly stated that the purpose of the amendment is to eliminate caregivers’ fears of losing their jobs, or not receiving the same opportunities at work because of their family obligations. This seems to suggest that there is at least some expectation, at least by the Commission, that employers must now allow for some degree of flexibility when applying its policies to employees with caregiving responsibilities.

Consider the situation where two employees are competing for a promotion. One employee has caregiver responsibilities, so he/she cannot work late nights or weekends, while another employee without caregiver responsibilities puts in late night and weekend hours, which results in more output and a higher quality of work than his/her competitor. If the employer promotes the non-caregiver based on merit, which is at least partially credited to the late night and weekend hours, does this deprive the caregiver of an opportunity because of his/her caregiving responsibilities?

While this new law raises many unanswered questions for employers, at a minimum, employers should give serious consideration to whether any of their policies, particularly their attendance and leave policies, have a disparate impact on employees with caregiving responsibilities. Employers should also provide training to supervisors and managers so that they understand they cannot treat employees with caregiving responsibilities less favorably when it comes to performance management, time off requests, or other terms and conditions of employment.

The employee contacted the Attorney General’s office, which initiated the investigation. The employer had never fired her, and offered to pay her for the missed shifts, but the AG's office asked for other remedies. According to the news reports, the employer later settled this complaint - without admitting liability or wrongdoing - but will now have to change its policies and educate its managers on this topic. The more interesting aspects of the settlement are safety measures which the AG's office required the store to put in place. These included a plan that would allow the female employee to park close to the store, allow her to use her cell phone at work, and a “safe room” which she could go to in case her husband entered the store.

New York has two sets of laws which cover this area. The New York State Human Rights Law (N.Y. Exec. Law § 290 et seq.) prohibits employment discrimination against any employee who is a victim of domestic violence. The New York City Human Rights Law (N.Y.C. Admin. Code § 8-101 et seq.) contains a similar, and more robust protection, which prohibits discrimination against a victim of domestic violence and also requires that an employer “accommodate” an employee in that situation.

This settlement serves as a reminder that these legal obligations exist, and that employers - both in and outside New York City - need to be mindful of these obligations and train their managers to be aware of them. These laws can and will be enforced by either the Attorney General, the State Division of Human Rights, or New York City Commission on Human Rights.

This is also a good reminder that management training is a must in today's litigious environment. As often is the case, it would appear here that the actions of one manager caused the company significant problems, and likely also resulted in significant expense. Often, a little training goes a long way and is well worth whatever costs. If nothing else, managers who have supervisory responsibility should be generally aware of the laws, and trained to reach out to Human Resources or counsel for advice, before taking adverse action against an employee.

Transgender is defined in the regulations as a person who is "perceived as having a gender identity, self-image, appearance, behavior or expression....that is different from that traditionally associated with the sex assigned to the person at birth." It also include those suffering from the condition known as "gender dysphoria," which is now defined as a "disability" under the law.

Individuals who believe that they have been discriminated against or denied reasonable accommodations will have all of the same remedies under the law as those subject to other forms of employment discrimination. Namely, they can file a charge with the state Division of Human Rights, sue in court, or file a charge with the Attorney General.

Kelley Drye will discuss these new regulations as well as other developments in this rapidly-evolving area of employment law at a complimentary CLE seminar, which we are offering on November 5, 2015, in our New York office. For details and to register please visit our website.