As we settle into the new year, we should take a look back at all of the legislative changes made to New York policies in 2018 that could potentially affect you and your employees.

Anti-Harassment Policies

  • Starting April 2019, employers with 15 or more employees must conduct annual anti-sexual harassment training and keep a record of all trainings, with signed employee acknowledgement. Employers are to  adopt and distribute a written sexual harassment prevention policy and have an official complaint form available to employees for reporting sexual harassment.
  • The Stop Sexual Harassment in NYC Act states that a employers, regardless of size, are subject to the New York City Human Rights Law’s (NYCHRL) prohibition on gender-based harassment.
  • The act also requires employers to post posters (in English and Spanish) and distribute information sheets on sexual harassment.

For guidance, the Department of Labor released model documents that are available here. Employers may choose to not adopt the state’s Model Sexual Harassment Policy, but they must ensure that their policies meet the state required minimum standards. For further information on whether your employee handbook is up to date with these policies, please contact our office.

New York Paid Family Leave Law

The state’s new Paid Family Law (PFL) requires employers to provide employee with paid leave. Under the PFL, employees may take leave to care for a family member due to the family member’s serious health condition or to bond with a newborn child during the first year of the child’s life or first year of a child’s placement for adoption or foster care with the employee.

  • Beginning Jan. 1, 2019, eligible employees are entitled to a total of 10 weeks of paid family leave during any given 52-week period. An employee is entitled to a maximum of 55% of the employee’s average weekly wage, maxing out at $746.41

Employee handbooks under the new PFL are required to include a written policy detailing employees’ rights and obligations under the law.

    • The name of the employer’s paid family leave insurance carrier or a statement that the employer is self-insuring for coverage.
    • Whether the employer permits employees to use accrued time to supplement PFL benefits.
    • Whether PFL must be taken concurrently with any other type of leave (e.g., parental leave).
    • Employees’ responsibility for covering health insurance premiums while out on leave.
    • Instructions on how to request paid family leave.
    • Whether the employer is subsidizing all or part of the cost of employees’ paid family leave premiums.

EEO Statement Including All Protected Classes

  • New York City expanded the definitions of “sexual orientation” and “gender” under NYCHRL. Employers should include the following definitions in their employee handbook’s EEO statement and any other discrimination, harassment, or retaliation policies.
    • “Sexual Orientation: ‘Sexual orientation’ is defined as ‘an individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender.’ The definition recognizes there is a “continuum of sexual orientation” protected under the law, including, but not limited to, asexuality and pansexuality in addition to the already covered heterosexuality, homosexuality and bisexuality.
    • Gender: ‘Gender’ is defined as ‘actual or perceived sex, gender identity, and gender expression including a person’s actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned to that person at birth.’”

New York City Council passed a bill to prohibit employment discrimination and discriminatory harassment/violence based on an individual’s reproductive health choices, which goes into effect May 2019. Furthermore, New York State passed the Gender Expression Non-Discrimination Act (GENDA), which extends protection for transgender and non-gender-conforming persons.

It adds gender identity and expression as a protected class under New York Human Rights Law.

Lactation Accommodations

  • Two New York City laws expand employer obligations for employees who choose to express milk in the workplace. The laws require employers to:
    • provide a suitable lactation room for employees
    • implement a written policy detailing employees’ rights to use the lactation room and the process for requesting use of the room.
  • Employers are also now required to implement a written lactation room policy notifying employees that they have the right to a lactation room and describing the process by which employees may request use of the lactation room.

Paid Sick Time

  • As of May 5, 2018, New York City expanded the Earned Sick Time Act to require employers to provide employees with paid “safe time.” New York City’s Earned Sick Time Act (“ESTA”) states that safe time can be used for a variety of activities related to the status of an employee.
  • ESSTA requires covered employers to provide, and reflect so in their employee policy/handbooks, that eligible employees with up to 40 hours of paid time off each calendar year to use in connection with
    • the employee’s or a family member’s mental or physical illness or injury
    • the closure of the employee’s workplace, or the school or care facility attended by the employee’s child, due to a declared public health emergency
    • matters related to a sexual offense, stalking, and human trafficking involving the employee or the employee’s family member, such as obtaining a protective order or securing safe housing (“safe time”).

Temporary Work Schedule Changes

  • On July 18, 2018, the NYC Fair Work Week Law was updated with New York City’s Temporary Schedule Change Amendment. This allowed employers to make temporary work changes to employee schedules for up to two business days each calendar year to accommodate “personal events.”
    • In addition to posting a required notice, employers must update their handbooks and leave policies to meet or exceed the requirements.

‘Cooperative Dialogue’ Regarding Potential Accommodations

  • Taking effect on October 15, 2018, New York City now requires employers covered by the NYCHRL (with 4 or more employees) to engage in a “cooperative dialogue” when evaluating employee requests for accommodations in the workplace and to document the results of that dialogue in writing. These accommodations could be related to his or her religious beliefs, disability, pregnancy, childbirth or related condition, or because the employee was a victim of domestic violence, sexual violence or stalking.
    • The statute directs employers to communicate orally or in writing with the employee regarding:
      • (1) the employee’s accommodation needs
      • (2) potential accommodations (including alternatives to a requested accommodation)
      • (3) any difficulties the proposed accommodations could pose for the employer.
    • The employer must also provide the employee with a final written determination at the conclusion of the cooperative dialogue identifying any accommodation it granted or denied. A no reasonable accommodation is available determination cannot be made until after the parties have engaged, or the employer has attempted to engage, in a cooperative dialogue.

Handbook Violation of the New Salary History Ban Laws

  • With the expansion of salary history ban laws into various jurisdictions, employers may want to revise any policy that authorizes the disclosure of salary/wage information, even with an employee’s written permission, to instead limit reference disclosures to only job title and date of employment.

Please feel free to contact our office with any questions regarding these policy changes.