Locke Lord QuickStudy: Ten New Employment Laws for New York Employers: Have You Fully Updated Your Employee Handbook Yet?

New York State and New York City started and ended 2018 and started 2019 by enacting ten worker protections that mandate additional requirements for New York employers. If you have not already done so, now is a good time to update the following sections of your employee handbooks to ensure they comply with each of those ten new laws.

Equal Employment Opportunity Policy

New York State and New York City enacted legislation that expands the definition of protected classes for EEO statements and any other discrimination, harassment, or retaliation policies.

Gender Identity Discrimination

In late January, New York Governor Andrew Cuomo signed into law the Gender Expression Non-Discrimination Act (“GENDA”), which takes effect on February 24, 2019. GENDA amends the New York State Human Rights Law to expressly prohibit discrimination on the basis of gender identity or expression.

Sexual Orientation/Gender/Reproductive Health Decision Discrimination

In 2018, New York City broadened the definitions of “sexual orientation” and “gender” under the New York City Human Rights Law. “Sexual orientation” is now defined as “an individual’s actual or perceived romantic, physical, or sexual attraction to other persons, or lack thereof, on the basis of gender.” This expanded definition recognizes a “continuum of sexual orientation” protected under the law, including, but not limited to, asexuality and pansexuality in addition to already covered heterosexuality, homosexuality, and bisexuality. “Gender” is now 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.”

In January, New York City also signed into law a bill to prohibit discrimination based on an employee’s reproductive health choices, which amends Section 8-101 of the New York City Human Rights Law to include “sexual and reproductive health decisions” as a protected category. This law goes into effect on May 20, 2019.

Lactation Accommodation Policy

In late 2018, New York City enacted two laws that will require employers (a) to provide lactation space for breastfeeding employees, and (b) develop lactation policies and processes for employees to request accommodations for nursing. These new laws take effect on March 18, 2019. 

Lactation Room

The first law requires employers to designate a lactation room (that is not a restroom), which is a sanitary space where employees can express breast milk shielded from view and free from intrusion. The room must have nearby access to running water, include an electrical outlet and a chair, and provide sufficient surface space to place a breast pump and other personal items. Employers must provide the lactation room and a refrigerator suitable for storing breast milk within reasonable proximity to the employees’ work area. The lactation room may be used for other purposes when not in use for expressing breast milk, but employers are required to notify other employees that the room’s preferential use is as a lactation room. If providing a lactation room results in an undue hardship for an employer, the employer must (a) engage in a cooperative dialogue with the affected employee(s) to determine what other reasonable accommodations might be available, and (b) provide a written final determination to the affected employee(s) that identifies any accommodations granted or denied.

This new law expands on the current mandates under New York State Labor Law, which already required employers to provide reasonable break time to express breast milk for up to three years after childbirth, and to provide a room/location (other than a restroom) to express breast milk in private.

Lactation Accommodation Policy

The second law requires employers to distribute to all new hires a written policy detailing employees’ rights to use a lactation room and the process for requesting the use of the lactation room. The lactation accommodation policy must include the following:

• Specify the means by which an employee may submit a request for a lactation room;
• Require the employer to respond to a request for a lactation room within five business days; 
• Provide a procedure to follow when two or more individuals need to use the lactation room at the same time, including contact information for any follow-up required; 
• State that the employer shall provide reasonable break time for an employee to express breast milk (pursuant to Section 206-c of the New York Labor Law); and 
• State that if the request for a lactation room poses an undue hardship upon the employer, the employer shall engage in the cooperative dialogue.

The new law also requires employers to retain records of requests for a lactation room (including the date of the request, and a description of how the employer resolved the request) for at least three years.

Disability Accommodation Policy

In late 2018, an amendment to the New York City Administrative Code went into effect that expanded the Americans with Disabilities Act’s “interactive dialogue” requirement to a more stringent “cooperative dialogue.” Under the City’s law, employers covered by the New York City Human Rights Law must engage in a good faith “cooperative dialogue” when evaluating employee requests for accommodations related to (1) disability, (2) pregnancy, childbirth, or a related medical condition, (3) needs as a victim of domestic violence, sex offenses, or stalking, and (4) religious needs. Accommodations are considered reasonable if they do not cause an undue hardship for the employer’s business.

Similar to the ADA’s interactive dialogue, the cooperative dialogue requires 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), and (3) any difficulties the proposed accommodations could pose for the employer. However, unlike the ADA, the City law also requires employers to provide the employee with a final written determination at the conclusion of the cooperative dialogue that identifies any accommodation granted or denied. The New York City statute expressly notes that a determination that no reasonable accommodation is available cannot be made until after the parties have engaged, or the employer has attempted to engage, in the cooperative dialogue.

While employers are encouraged to document the ADA’s interactive process as a best practice, an employer’s failure to document its engagement in the cooperative dialogue is itself considered an unlawful discriminatory practice under the City’s Human Rights Law, which could subject employers to compensatory damages, punitive damages, and attorneys’ fees.

Sexual Harassment Training and Policy

In 2018, both New York State and New York City enacted sweeping anti-harassment legislation that requires employers to provide annual sexual harassment training to all workers, distribute a comprehensive sexual harassment prevention policy, and update their employment contracts and settlement agreements.
Both New York State and New York City now require sexual harassment training on an annual basis. Employers have one year from October 9, 2018 under the State law, and one year from April 1, 2019 under the City law, to conduct such training.

The New York State law required an updated sexual harassment policy to be distributed by October 9, 2018, and New York City required an updated policy to be distributed by September 6, 2018. New York City also required distribution of a fact sheet by September 6, 2018.

More information on these new sexual harassment policy and training requirements are detailed in our June 19, 2018 article.

New York City Earned Safe and Sick Time Policy

In mid-2018, New York City amended its Earned Sick Time Act to implement two major changes. First, the amended Act expanded the types of reasons for which employers must allow employees to use paid time off, which now includes “safe leave.” Second, the amended Act broadened the definition of family member to include any individual related by blood to the employee and any individual whose close association with the employee is the equivalent of family. More information on the expanded requirements for paid safe and sick time are detailed in our June 7, 2018 article.

New York City Temporary Schedule Change Policy

Effective July 2018, New York City employees are now entitled to temporary schedule change leave. Under the City’s Temporary Schedule Change law, employers must grant eligible employees two temporary schedule changes each calendar year for qualifying events. This leave is in addition to earned safe and sick time leave. The new law also provides a specific procedure for employers to follow when employees request temporary schedule changes. More information on the requirements for temporary schedule changes are detailed in our July 20, 2018 article.

New York Paid Family Leave Policy

Last year started with New York State’s new Paid Family Leave Law (“PFL”). The law requires that employers provide employees with paid leave for purposes largely identical to the Family Medical Leave Act (“FMLA”), except that New York employees may not use paid family leave to address their own serious health condition. Under PFL, employees may use paid family leave for the following reasons:

• To care for a family member due to the family member’s serious health condition;
• 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;
• In connection with the process of placing or adopting a child if an absence from work is necessary for the placement to proceed; and 
• In the event of a qualifying exigency arising from service of a family member in the armed forces.

PFL also expands family member coverage to domestic partners and grandparents.

PFL requires employers to publish a written policy detailing employee rights and obligations under PFL. At a minimum, PFL policies should include the following provisions:

• Instructions on how to request PFL.
• 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., FMLA leave).
• The name of the employer’s paid family leave insurance carrier or a statement that the employer is self-insuring for coverage.
• Employees’ responsibility for covering health insurance premiums while out on leave.

Beginning January 1, 2019, the amount of paid family leave benefits increased from 8 weeks to 10 weeks during any given 52-week period. Further, during the 2019 calendar year, an employee is now entitled to a maximum of 55 percent of the employee’s average weekly wage, maxing out at $746.41 per week. The number of weeks of leave and payment amounts are scheduled to continue increasing until 2021.

Takeaway 

New York lawmakers passed numerous employee protection legislation in the last year that imposes considerable obligations on employers. Many of these laws require specific written policies or procedures, or updates to current policies. Employers are encouraged to start the new year right by reviewing and updating employee handbooks and policies to address these news laws and ensure compliance in the workplace.