8

March, 2020

Managing Workplace Epidemics: Coronavirus Concerns in Westchester County and New York City

By Tracey I. Levy, Esq. and Alexandra Lapes, Esq.

As the global Coronavirus situation is expanding rapidly and hitting close to home, Westchester County and New York City employers should review their communicable disease plans and implement preventative measures to limit the potential effect of illness in the workplace.

Key strategies for employers in preparing and responding to a Coronavirus outbreak are:

  1. Implement a communicable disease policy

If your organization has not done so already, HR professionals should devise a communicable disease policy and prevention plan in case the outbreak directly impacts their workplace.  An effective policy should identify and communicate the organization’s objectives and address workplace safety precautions, such as employee travel restrictions, mandatory reporting of exposure, reporting to public health authorities, employees quarantined or in isolation, and facility shutdowns.

Employers should also establish policies to encourage employees who feel sick to stay home, post reminders on proper handwashing and coughing/sneezing practices and make hand sanitizers and tissues available throughout the workplace. Remind employees of relevant policies that may provide them with paid time off in these circumstances, including time off under Westchester County’s Earned Sick Leave Law and New York City’s Earned Sick and Safe Time Act, as discussed below.

  1. Make sure not to discriminate

Because of the heightened risk that COVID19 presents for individuals with underlying medical conditions, in the course of implementing a communicable disease policy or administering a response to the current Coronavirus threat employers may learn, inadvertently or otherwise, of latent disabling conditions impacting some of their employees.  Employers should treat all such information as confidential, and take care not to engage in any actions that could be perceived as discriminating based on a disability.

Employers also should avoid, and take measures to prevent, any harassment or discriminatory actions that target individuals who may be associated with an ethnic or religious group, or who have relatives from a particular country, that has been more substantially impacted by the spread of the virus.  Employment policies should be consistent with public health recommendations, as well as local, state, and federal workplace laws.

  1. Consider alternative work arrangements

Encourage sick employees to stay home and focus on their health, and recovering employees or those who have been asked to self-quarantine to do so.  Consider flexible work schedules to limit the number of workers in the same work area or worksite, reduce exposure during commutes on mass transit at peak times, and reduce face-face contact.  Use virtual work environments to replace in-person meetings with video or telephone conferences. Leverage remote access solutions where logistically possible to enable healthy employees to stay productive in the event the workplace or specific individuals are subject to a quarantine.

  1. Advise employees before traveling

Employers should continuously check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which an employee may need to travel.  Advise employees to check themselves for symptoms before travelling and notify their supervisor if they need to stay home.  If an employee becomes sick while travelling or on temporary assignment, ensure the employee understands to notify a supervisor and promptly call a local health care provider.  New Yorkers can call the State hotline at 1-888-364-3065, and for Westchester County COVID-19 information call 211.

  1. Manage employee benefits and compensation

Non-exempt employees must be paid overtime compensation if they work in excess of 40 hours in a workweek while covering for other employees absent due to the Coronavirus.  Time spent working from home or through other remote work arrangements also is compensable.

Most employees in Westchester County and New York City will be eligible for up to five days of paid sick leave, under local paid sick leave laws, if they personally contract the Coronavirus, their workplace is closed due to a public health emergency, they are caring for a family member who has contracted the virus, or they are caring for a child whose school or childcare provider is closed due to a public health emergency.

Employers should consider whether, independent of any available paid leave time, they want to continue to pay employees for all or some portion of the time that they are unable to or are precluded from working because of the Coronavirus.  While some organizations have suggested leave donation plans as a means of encouraging sick employees to stay home if they have exhausted their paid time-off benefits, such programs need to be carefully considered.  If not appropriately structured, the donated time can have tax consequences for the donor and the recipient.  Further, the benefits of such a program for small and mid-size employers may prove to be few or fleeting in the context of a pandemic, as donated time may benefit the first to fall ill, but then leave little in the bank for the donors and others who later contract the disease.

New York State Paid Family Leave is available for employees who may need to care for a close family member with a serious health condition.  However, the state defines a “serious health condition” as an “illness, injury, impairment, physical or mental condition requiring inpatient care in a hospital, hospice, or inpatient/outpatient residential health facility;” or “continuing treatment or supervision by a health care provider.”  Under this definition, care of a family member who is hospitalized due to Coronavirus or who has complications from the virus due to an underlying medical condition, such as asthma or respiratory disease, likely would be covered.  Care of a family member who experiences milder Coronavirus symptoms, more akin to the flu, likely would not be covered.

  1. Stay informed on changes to state and local law

Local paid sick leave laws in Westchester County and New York City present some additional challenges for employers.  The laws permit employers to require employees to provide documentation from a health care provider after three consecutive sick days, but employers may not require the health care provider to specify the medical reason for sick leave.  Employers need to balance this provision against the need to be informed, for public safety reasons, if an employee has been diagnosed with the Coronavirus or is being quarantined so as to take appropriate precautions to prevent the further spread of the virus throughout the workplace.  Also, the National Centers for Disease Control and Prevention advises employers not to require medical certification at this time to validate employees who are sick with acute respiratory illness, as they anticipate healthcare providers and medical facilities may be extremely busy and not able to provide such documentation.

Notably, while it has been widely reported that New York State Governor Cuomo plans to amend New York State’s paid sick leave bill to deal with the Coronavirus, there currently is no state-wide paid sick leave law in New York.  Paid sick leave at the state level is simply proposed legislation that needs to make its way through the legislative process and, even if enacted, as proposed the law would not take effect until April 2021.

  1. Employee morale and business continuity

Lastly, employers should endeavor to communicate information to employees about their organization’s communicable disease plan, efforts to reduce the risks of contagion in their workplace, and policies and benefits for those who are directly impacted by the Coronavirus.

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12

August, 2019

New York State Amends Other HRL Discrimination Protections – Broad Protections Expanded Well Beyond Sexual Harassment

By Tracey I. Levy, Esq. and Alexandra Lapes, Esq.

Just over a year after New York enacted sweeping protections against sexual harassment, Governor Cuomo today signed into law further amendments to the New York State Human Rights Law to provide more expansive protections for employees based on any protected characteristic.

SPECIAL ALERT – IMMEDIATE ACTION REQUIRED

Distribute Policy for Harassment Prevention Training

Of most immediate concern, employers who are racing to comply with the October 9 deadline for year one of harassment prevention training should note that, effective immediately, employers are mandated to distribute a copy of their sexual harassment prevention policy at every training session, as well as at hire, both in English and in the employee’s primary language.

Other Significant Changes

In addition to the policy distribution requirement, New York State’s new law extends the Human Rights Law’s requirements to employers of any size, as well as domestic workers, and expands the law’s protections to contractors, consultants and vendors who can show the employer knew or should have known of discrimination directed at them and failed to take immediate and appropriate corrective action that was within its ability.

In addition, the new law:

  • Broadly defines unlawful harassment as subjecting an individual to inferior terms, conditions, or privileges of employment because of an individual’s protected characteristic(s);
  • Eliminates the employee’s obligation to prove that harassing conduct is severe and/or pervasive;
  • Declares that an employee need not show that a comparative individual was treated more favorably;
  • Mandates that the state’s Human Rights Law be construed liberally, regardless of how comparable federal or other states’ laws may be interpreted; and
  • Eliminates the employer’s ability to defend the complaint on the grounds that the employee failed to raise an internal complaint;
  • But it permits employers to defend a claim by proving that the harassing conduct does not rise above the level of what a reasonable person in the shoes of the plaintiff would consider petty slights or trivial inconveniences.

For most employers, these changes will not require any revisions to their existing harassment prevention policy.  However, the “sidewalks” that most policies build around the legal standards have now gotten much narrower, and the amendments collectively make it significantly easier for an employee to support a legal claim of unlawful harassment.  Procedurally, the law increases the remedies available in litigation to include punitive damages and attorneys’ fees for a prevailing plaintiff (while an employer can seek recovery of its attorneys’ fees only if it shows the case was frivolous); and extends the statute of limitations for sexual harassment claims from one to three years.  With the exception of the change in the statute of limitations (which takes effect one year after enactment of the new law), all these changes take effect within the next 60 to 180 days.

Moving beyond litigation, the new law expands the confidentiality and mandatory arbitration clause restrictions adopted last year for sexual harassment claims to now apply to any claim of harassment or discrimination under the Human Rights Law, and it voids out any confidentiality clause to the extent it precludes participation in a government agency investigation or impedes a complainant’s filing for unemployment insurance, Medicaid or other public benefits.  As of January 1, 2020, any non-disclosure provision to which a complainant affirmatively consents must include language confirming that it does not prevent the employee from speaking with law enforcement, a human rights enforcement agency, or an attorney.

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9

July, 2018

Moving Forward After #MeToo – Consider Your Policies

Recent changes to New York State law regarding prevention of sexual harassment will require employers to revisit existing policies to comply with newly-mandated provisions, as summarized in our lead story from Takeaways, Spring 2018.  But looking beyond the state law, one key lesson to be derived from the #MeToo movement is that workplace policies prohibiting harassment must also emphasize power disparities.  The common thread in so many of the #MeToo-type incidents reported in the media is the use of, or perceived threat to use, power to objectify or demean someone.   This power-based focus is not just limited to gender; it plays out in interactions between individuals of different races, national origin, religions, sexual orientation and other protected classes, and thus it should be emphasized in any policy prohibiting harassment, not just those pertaining to sexual harassment.

Power disparities also are not limited to supervisor-subordinate relationships.  Consider a new hire being shown the ropes by an employee with five or ten years of experience.  Those individuals may be peers on an organization chart, but there still is a power disparity that can cause the new hire to feel uncomfortable objecting to offensive behavior.

Other times, the behavior at issue may not fall into the category of actionable harassment based on a protected characteristic.  Sometimes the behavior is just demeaning and abusive on an individual or group level.

Regardless of whether the behavior would give rise to a legal claim, the nature of such conduct can be corrosive in the work environment.  It can undermine morale, loyalty and productivity.  One step in addressing that is to add a clear, express statement in your anti-harassment policy that you will not tolerate the use of, or perceived threat to use, power to objectify or demean someone based on a protected class.  Employers that want to go further than the law can build on that with an anti-bullying or workplace conduct policy emphasizing that actual or perceived misuse of power, including abusive behavior, is not acceptable and grounds for disciplinary action.

Employment policies need to comply with legal requirements, but employers have the option of holding employees to a higher standard of behavior.  Updating policies to incorporate lessons learned from #MeToo is an important step in that process.

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15

May, 2018

What’s Different About New York’s Harassment Prevention Training Mandate

Beginning this fall, employers in New York State will be required to provide interactive harassment prevention training to employees.  This is not a new concept – such training has been mandated for years in California, Connecticut and Maine – but the scope, nature and frequency of the training are quite different from what other states have legally required.  Consider:

  • All private employers are covered – other states only mandate employers of a certain size to provide such training; New York’s law applies to every private sector employer;
  • All employees are covered – other states only mandate training for those at a supervisor level or above; New York’s law covers employees at every level of the organization;
  • It must be done annually – other states require biannual training;
  • It needs to cover legal rights and remedies with regard to sexual harassment – other states take a more holistic approach to discussing all forms of unlawful harassment, discrimination and retaliation; a prudent New York State employer would do the same and look beyond just sexual harassment;
  • There is no minimum duration – other states mandate two hours of training; New York sets no time limit, but mandates interactivity and a list of subjects to be covered.

The Department of Labor and the Division of Human Rights are currently working to develop a model of the type of training program they expect employers to implement.

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30

March, 2015

What is it with Pregnancy?

Pregnant employees, as a protected class, are having their moment in the sun.  The United States Supreme Court just held in Young v. United Parcel Service, Inc. that pregnant employees may be legally entitled to accommodation of their pregnancy-related work limitations, even if those limitations do not meet the threshold of a legally-recognized “disability”.  Also, for the first time in 25 years, the Equal Employment Opportunity Commission updated its Enforcement Guidance on Pregnancy Discrimination in July 2014 to declare that pregnant employees should receive the same types of accommodations, for example modified tasks, alternative assignments, or leave, as an employer accords to disabled employees who have requested a reasonable accommodation.

As I discussed earlier this year, in 3 Hyper-Local Laws Employers Can’t Afford to Ignore, various states and municipalities (including New York City) have recently passed laws providing enhanced protection to pregnant employees.  Bills offering similar protections are pending in other state legislatures.

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