New Year, New Employee Handbook! Is Your Employee Handbook Up to Date?

Now that the Times Square glitter has settled, it’s time to get started on tackling those New Year’s resolutions. Although updating your employee handbook may not have made your resolution list, 2018 brought a number of important handbook changes that warrant the attention of New York employers. Start off 2019 by ensuring your employee handbooks and other policies are up-to-date with last year’s legislation mandating new requirements for New York employers.

Are Your Anti-Harassment Policies Up to Date?

In 2018, both New York state and New York City enacted more stringent requirements related to sexual harassment prevention and training. While most employers already had policies regarding the prohibition of sexual and other forms of harassment, if you did not update those policies in 2018, you are likely not in compliance with the specific requirements of the new laws.

New York state employers are now required to provide annual training to all employees regarding sexual harassment, adopt and distribute a written sexual harassment prevention policy, and provide to employees a complaint form for reporting sexual harassment. In light of these new laws, the Department of Labor, in consultation with the Division of Human Rights, released a number of guidance documents, including both a Model Sexual Harassment Prevention Policy (Model Policy) and a Model Complaint Form for Reporting Sexual Harassment, that can be incorporated into employee handbooks.

An employer that does not adopt the state’s Model Policy must ensure that its anti-sexual harassment policy meets the following minimum standards. The policy must:

• Explicitly state that sexual harassment is prohibited in the workplace, and provide examples of conduct that would constitute sexual harassment.
• Inform employees of applicable federal and state laws and the remedies available to sexual harassment victims, and contain a disclosure that other local laws may apply.
• Provide a standard complaint form.
• Include the employer’s procedure for a timely and confidential investigation of complaints.
• State employees’ rights of redress, including all available forums available to the employee for adjudicating sexual harassment complaints both administratively and judicially.
• State that sexual harassment is a form of employee misconduct that can result in adverse employment consequences for the harasser and any supervisor or manager who knowingly allows such behavior to continue.
• State that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding is unlawful.

New York City also passed a similar law in 2018. The Stop Sexual Harassment in NYC Act provides that all employers, regardless of size, will be subject to the New York City Human Rights Law’s (NYCHRL) prohibition on gender-based harassment. The city law also requires all employers to display a poster and distribute an information sheet on sexual harassment to new employees at the time of hire. Additionally, the law extends the statute of limitations for filing gender-based harassment complaints with the New York City Commission on Human Rights (the Commission) under the NYCHRL from one to three years but retains the three-year statute of limitations for filing a claim in court. Effective April 2019, the law requires that employers with 15 or more employees conduct annual anti-sexual harassment training for all employees and keep a record of all trainings, including a signed employee acknowledgment.     

As the requirements for these new sexual harassment laws are rather extensive and the guidance concerning these new laws has been updated multiple times since their initial passage, employers are encouraged to carefully review their sexual harassment policies — even if their policies were recently updated — to ensure they comply with both the state’s and the city’s most recent iterations of guidance.

Does Your Handbook Include References to the New York Paid Family Leave Law?

New York employers started 2018 with the state’s new Paid Family Leave Law (PFL). The law requires that employers provide employees with paid leave, the cost of which is covered through insurance coverage paid for by deductions from employee paychecks. The permitted purposes for taking paid family leave largely mirror the Family and Medical Leave Act’s (FMLA) purposes, except that employees may not use paid family leave to address their own serious health condition. Under the PFL, they may take leave:

• 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.
• In the event of a qualifying exigency arising from service of a family member in the armed forces.

The PFL also expands family member coverage; in addition to spouses, children and parents, who are covered by the FMLA, the PFL extends coverage to domestic partners and grandparents.

2019 brings new changes to the PFL. Beginning Jan. 1, 2019, eligible employees are entitled to a total of 10 weeks of paid family leave during any given 52-week period, a two-week increase from the 2018 benefit. During the 2019 calendar year, an employee is entitled to a maximum of 55 percent of the employee’s average weekly wage, maxing out at $746.41. The number of weeks of leave and payment amounts are scheduled to continue, escalating until 2021.

The PFL requires each employer to publish a written policy detailing employees’ rights and obligations under the PFL. According to the New York Workers’ Compensation Board, PFL policies should include:

• 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.

When drafting a PFL policy, employers should give careful consideration to how paid family leave interacts with other potential leaves of absence, including under the FMLA, vacation or paid time off, and short-term disability. In addition, if your policy specifies the number of weeks of available leave or the maximum payment rates, it will need to be updated to reflect the 2019 benefit increases.

Does Your EEO Statement Capture All Protected Classes?

In early 2018, New York City broadened the definitions of “sexual orientation” and “gender” under the NYCHRL.

Sexual Orientation: Under the expansive new definition, “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: The new, broader definition defines “gender” 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 late 2018, the New York City Council approved a bill to prohibit employment discrimination and discriminatory harassment or violence based on an individual’s reproductive health choices. The bill, which was signed into law earlier this month, amended Section 8-101 of the New York City Administrative Code to include “sexual and reproductive health decisions” as a protected category. The law goes into effect May 20, 2019.

On Jan. 25, 2019, Gov. Andrew Cuomo signed into law the Gender Expression Non-Discrimination Act (GENDA), which extends protections for transgender and non-gender-conforming persons by explicitly adding gender identity and expression as a protected class under the New York Human Rights Law. Although the New York State Division of Human Rights had previously adopted regulations consistent with state case law interpreting the meaning of “sex” to clarify that transgender individuals are protected from discrimination and harassment under the state’s Human Rights Law, the passage of GENDA explicitly codifies these protections into law.

Employers should ensure these new definitions are reflected in their employee handbook’s EEO statement and any other discrimination, harassment, or retaliation policies.

Do Your Handbook and Policies Provide for Lactation Accommodations?

In late 2018, New York City adopted two new laws that place additional obligations on employers to accommodate employees who choose to express milk in the workplace. The laws, both of which go into effect on March 18, 2019, require employers to provide a suitable lactation room for employees and implement a written policy detailing employees’ rights to use the lactation room and the process for requesting use of the room. As such, employers reviewing their employee handbooks should strive to ensure their lactation accommodation policies meet the law’s new requirements.

As a reminder, the new laws dictate the lactation room must be “a sanitary place, other than a restroom, where employees can express breast milk shielded from view and free from intrusion.” At a minimum, the lactation room must have nearby access to running water and include an electrical outlet, a chair, and a surface on which to place a breast pump and other personal items. Moreover, both the lactation room and a refrigerator “suitable for breast milk storage” must be in “reasonable proximity” to the employee’s workspace. Although the new laws allow an employer to designate a room that also is used for other purposes, its sole function must be as a lactation room while an employee is using it to express milk, and the employer must notify other employees that “the room is given preference for use as a lactation room.”

If providing a lactation room poses an “undue hardship” for an employer, the employer must engage in a “cooperative dialogue” with the employee to determine what, if any, accommodations might be available.

Under the new laws, 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. As such, employers should ensure their employee handbooks/policies:

• Specify the means by which an employee may submit a request for a lactation room.
• Require that the employer respond to a request for a lactation room within a reasonable amount of time, not to exceed 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 Labor Law.
• State that if the request for a lactation room poses an undue hardship on the employer, the employer shall engage in a cooperative dialogue.

Does Your Handbook Include Paid Safe Time?

In 2018, New York City created new protections for employees who have been victims of domestic violence and/or unwanted sexual contact. On May 5, 2018, New York City’s amended Earned Safe and Sick Time Act became effective, expanding the Earned Sick Time Act to require employers to provide employees with paid “safe time.” Safe time can be used for a variety of activities related to the status of an employee (or the family member of an employee) as a victim of domestic violence or unwanted sexual contact, stalking or human trafficking, including:

• To obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking or human trafficking.
• To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking or human trafficking.
• To meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in, any criminal or civil proceeding, including but not limited to matters related to family offenses, sexual offenses, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, or discrimination in employment, housing or consumer credit.
• To file a complaint or domestic incident report with law enforcement.
• To meet with a district attorney’s office.
• To enroll children in a new school.
• To take other actions necessary to maintain, improve or restore the physical, psychological or economic health or safety of the employee or the employee’s family member, or to protect those who associate or work with the employee.

The law also requires that employers include in their safe and sick time policies a description of the confidentiality requirements of Section 20-921 of the Administrative Code. Unless the employee authorizes disclosure or disclosure is required by law, the provision prohibits an employer from disclosing an employee’s or an employee’s family member’s medical condition, health information, status or perceived status as a victim of a family or sexual offense or of stalking or human trafficking, and requires employers to keep confidential such information obtained in connection with utilizing safe/sick time.

Employers should ensure their employee handbooks and leave policies are updated to reflect the addition of “safe time” as protected leave.

Do Your Handbook and Policies Allow for Temporary Work Schedule Changes?

On July 18, 2018, New York City’s Temporary Schedule Change Amendment to the Fair Workweek Law (Int. 1399-A) became effective. The law generally requires employers in New York City to allow a covered employee to make a temporary work change to the employee’s schedule for up to two business days each calendar year to accommodate a “personal event.” A “personal event” occurs when an employee needs to:

• Care for a minor child for whom the employee provides direct and ongoing care.
• Care for an individual with a disability for whom the employee provides direct and ongoing care to meet the needs of daily living and who is a family member or who resides in the caregiver’s household.
• Attend a legal proceeding or hearing for public benefits for the employee, a family member, or the employee’s minor child or care recipient.
• Use leave for reasons permitted under NYC’s Paid Safe and Sick Leave Law.

In addition to posting a required notice, employers must update their handbooks and leave policies to meet or exceed the requirements of the new law and educate managers and supervisors regarding their obligations under the law.

Does Your Handbook Mandate a ‘Cooperative Dialogue’ Regarding Potential Accommodations?

On Oct. 15, 2018, an amendment to the New York City Administrative Code went into effect requiring employers covered by the NYCHRL to engage in a good faith “cooperative dialogue” when evaluating employee requests for accommodations in the workplace and to document the results of that dialogue in writing. Generally, all employers with four or more employees are covered by the NYCHRL, and all employees who work for such employers in New York City are entitled to the law’s protections, whether full time or part time, interns, temporary workers, or otherwise.

The NYCHRL’s cooperative dialogue requirement is similar but more stringent than the Americans With Disabilities Act (ADA) “interactive dialogue” requirement. Like the ADA, 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), and (3) any difficulties the proposed accommodations could pose for the employer. Unlike the ADA, however, under the NYCHRL the employer must provide the employee with a final written determination at the conclusion of the cooperative dialogue identifying any accommodation it granted or denied. The 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 a cooperative dialogue.

Although the amendment does not require that this cooperative dialogue process be explicitly laid out in the employee handbook, employers who choose to explain their accommodation processes in their handbooks should be mindful of these additional requirements when drafting such policies.

Does Your Handbook Language Violate New Salary History Ban Laws?

In 2017, New York City passed legislation generally prohibiting employers from asking for or relying on (except in limited circumstances) information about a candidate’s prior compensation. The trend of “salary history ban” laws continued in 2018, with various jurisdictions across New York state adopting their own legislation concerning salary inquiries.

Due to the growing number of jurisdictions enacting salary history bans, employers should consider amending their reference practices. 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.

Is Your Handbook Ready for 2019?

Employee handbooks and policies received a lot of attention from New York lawmakers in 2018. We predict there will be even more changes to come in 2019. Start off the new year right by reviewing your employee handbook to ensure you are in compliance. For questions or concerns regarding compliance with any of the policies listed above, please contact a member of Kramer Levin’s Employment Department.