On May 4, a New York City law barring discrimination against “caregivers” took effect. Specifically, the law prohibits employers from taking an adverse action (e.g., refusing to hire, firing, or demoting), or otherwise discriminating against an employee with respect to the terms and conditions of employment, based on the employee’s actual or perceived status as a “caregiver.”
The law defines “caregiver” as a “person who provides direct and ongoing care for a minor child or a care recipient.” “Care recipient,” in turn, is defined as a person with a disability who (1) relies on the caregiver for medical care or to meet the needs of daily living, and (2) resides in the caregiver’s household or is the 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 designated by the NYC Commission on Human Rights (the Commission), the agency that enforces the law.
In conjunction with the law’s effective date, the Commission has issued two informational documents to help employers better understand their new obligations. Perhaps most notably, the Commission’s guidance clarifies that, although the law does not require employers to provide accommodations owing to an employee’s caregiving responsibilities, employers cannot deny benefits (e.g., shift changes, flexible scheduling) to employees with caregiving responsibilities if they provide such benefits to other employees. Curiously, the guidance also suggests that the law’s protections apply to employees caring not only for family and household members with disabilities but also for those with mere “illnesses.” Given that the Commission’s interpretation could be argued to encompass mundane maladies like the common cold, expect legal challenges to this portion of the guidance. Lastly, the guidance also provides examples of conduct the Commission would deem a violation of the caregiver law. Copies of the guidance can be found here and here.
Given the broad definition of “caregiver,” and the number of employees “caregiver” could potentially encompass, employers should immediately review their policies and procedures to ensure compliance with the new law. Penalties for violating the “caregiver” law, like all other violations of the NYC Human Rights Law, may include back pay, front pay, emotional distress damages, uncapped punitive damages, and attorneys’ fees, as well as substantial civil penalties.