2021 New York Laws
LAB - Labor
Article 7 - General Provisions
201-D - Discrimination Against the Engagement in Certain Activities.

Universal Citation: NY Lab L § 201-D (2021)
§  201-d. Discrimination against the engagement in certain activities.
1.  Definitions. As used in this section:
  a. "Political activities" shall mean (i) running  for  public  office,
(ii)   campaigning   for   a  candidate  for  public  office,  or  (iii)
participating in fund-raising activities for the benefit of a candidate,
political party or political advocacy group;
  b. "Recreational  activities"  shall  mean  any  lawful,  leisure-time
activity,  for  which the employee receives no compensation and which is
generally engaged  in  for  recreational  purposes,  including  but  not
limited  to sports, games, hobbies, exercise, reading and the viewing of
television, movies and similar material;
  c. "Work hours" shall mean, for purposes of this  section,  all  time,
including  paid and unpaid breaks and meal periods, that the employee is
suffered, permitted or expected to be engaged in work, and all time  the
employee  is  actually  engaged  in  work.  This definition shall not be
referred to in  determining  hours  worked  for  which  an  employee  is
entitled  to  compensation  under  any law including article nineteen of
this chapter.
  2. Unless otherwise provided by law, it  shall  be  unlawful  for  any
employer  or  employment agency to refuse to hire, employ or license, or
to discharge  from  employment  or  otherwise  discriminate  against  an
individual in compensation, promotion or terms, conditions or privileges
of employment because of:
  a.  an individual's political activities outside of working hours, off
of the employer's premises and without use of the  employer's  equipment
or other property, if such activities are legal, provided, however, that
this paragraph shall not apply to persons whose employment is defined in
paragraph  six of subdivision (a) of section seventy-nine-h of the civil
rights law, and provided further that this paragraph shall not apply  to
persons  who  would  otherwise  be prohibited from engaging in political
activity pursuant to chapter 15 of title 5 and subchapter III of chapter
73 of title 5 of the USCA;
  b.  an  individual's  legal  use  of  consumable  products,  including
cannabis  in  accordance with state law, prior to the beginning or after
the conclusion of the employee's work hours, and off of  the  employer's
premises and without use of the employer's equipment or other property;
  c.  an  individual's legal recreational activities, including cannabis
in accordance with state law, outside work hours, off of the  employer's
premises  and without use of the employer's equipment or other property;
or
  d. an individual's membership in a union or  any  exercise  of  rights
granted under Title 29, USCA, Chapter 7 or under article fourteen of the
civil service law.
  3.  The  provisions  of  subdivision  two of this section shall not be
deemed to protect activity which:
  a. creates a material conflict of interest related to  the  employer's
trade  secrets, proprietary information or other proprietary or business
interest;
  b. with respect to employees of a state agency as defined in  sections
seventy-three  and seventy-four of the public officers law respectively,
is in knowing violation of subdivision two, three,  four,  five,  seven,
eight  or  twelve of section seventy-three or of section seventy-four of
the public officers law, or of any executive order,  policy,  directive,
or  other  rule which has been issued by the attorney general regulating
outside employment or activities that  could  conflict  with  employees'
performance of their official duties;
  c.  with  respect  to  employees of any employer as defined in section
twenty-seven-a of this chapter, is in knowing violation of  a  provision

of  a  collective  bargaining  agreement concerning ethics, conflicts of
interest, potential conflicts of interest, or the  proper  discharge  of
official duties;
  d.  with  respect  to  employees of any employer as defined in section
twenty-seven-a  of  this  chapter  who  are  not  subject   to   section
seventy-three  or seventy-four of the public officers law, is in knowing
violation of article eighteen of the general municipal law or any  local
law,  administrative  code  provision,  charter  provision  or  rule  or
directive of the mayor or any agency head of a city having a  population
of  one  million  or  more,  where  such  law,  code  provision, charter
provision, rule or directive concerns  ethics,  conflicts  of  interest,
potential  conflicts  of  interest,  or the proper discharge of official
duties and otherwise covers such employees; and
  e. with respect to employees other  than  those  of  any  employer  as
defined in section twenty-seven-a of this chapter, violates a collective
bargaining   agreement   or   a  certified  or  licensed  professional's
contractual obligation to devote his or her entire  compensated  working
hours to a single employer, provided however that the provisions of this
paragraph  shall  apply  only  to professionals whose compensation is at
least fifty thousand dollars for the year  nineteen  hundred  ninety-two
and  in  subsequent  years  is an equivalent amount adjusted by the same
percentage as the annual increase or  decrease  in  the  consumer  price
index.
  4.  Notwithstanding  the  provisions  of  subdivision  three  of  this
section, an employer shall not be in violation of this section where the
employer  takes  action  based  on  the  belief  either  that:  (i)  the
employer's  actions  were  required by statute, regulation, ordinance or
other governmental mandate, (ii) the employer's actions were permissible
pursuant to  an  established  substance  abuse  or  alcohol  program  or
workplace   policy,   professional  contract  or  collective  bargaining
agreement, or (iii) the individual's actions were deemed by an  employer
or  previous  employer  to  be  illegal or to constitute habitually poor
performance, incompetency or misconduct.
  4-a. Notwithstanding the provisions of subdivision three  or  four  of
this  section,  an  employer  shall  not be in violation of this section
where the employer takes action related to the use of cannabis based  on
the following:

(i) the employer's actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;

(ii) the employee is impaired by the use of cannabis, meaning the employee manifests specific articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position, or such specific articulable symptoms interfere with an employer's obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law; or

(iii) the employer's actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding. 5. Nothing in this section shall apply to persons who, on an individual basis, have a professional service contract with an employer and the unique nature of the services provided is such that the employer shall be permitted, as part of such professional service contract, to limit the off-duty activities which may be engaged in by such individual. 6. Nothing in this section shall prohibit an organization or employer from offering, imposing or having in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' recreational activities or use of consumable products, provided that differential premium rates charged employees reflect a differential cost to the employer and that employers provide employees with a statement delineating the differential rates used by the carriers providing insurance for the employer, and provided further that such distinctions in type or price of coverage shall not be utilized to expand, limit or curtail the rights or liabilities of any party with regard to a civil cause of action. 7. a. Where a violation of this section is alleged to have occurred, the attorney general may apply in the name of the people of the state of New York for an order enjoining or restraining the commission or continuance of the alleged unlawful acts. In any such proceeding, the court may impose a civil penalty in the amount of three hundred dollars for the first violation and five hundred dollars for each subsequent violation. b. In addition to any other penalties or actions otherwise applicable pursuant to this chapter, where a violation of this section is alleged to have occurred, an aggrieved individual may commence an action for equitable relief and damages.

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