Tag: lactation accommodation

7

February, 2023

Legally-Prescribed Policy Wording Ensnares Those Striving to Be Employers of Choice

I write a lot of policies.  They come with the advisory work that I do, and I also gravitate toward those types of projects.  In doing that work, one of my frustrations has been the increasing degree to which legislatures are imposing new legal obligations on employers – particularly, but not exclusively, with regard to paid and unpaid time off benefits – and mandating specific language be included in employer policies.

Today I want to focus on the wording requirements, because they can be so particular and such an affront to well-intentioned employers.  Pet peeves, because they cause me so much pushback from my clients – are provisions like the New York City lactation accommodation law and the New York State paid sick leave law.

Specificity Feels Like Mandating Minutia

New York City requires employers to have a lactation policy with very specific provisions, the granularity of which can produce surprise or dismay from employers.  Under the city’s law, the employer’s policy must include language that the employer will respond to a request for a lactation room within no more than five business days.  The policy also must outline a procedure to follow when two or more individuals need to use the lactation room at the same time.  New York State recently adopted its own lactation accommodation requirement applicable to private employers, and that law similarly requires a written policy that incorporates language about the five business day response time.

I draft the appropriate language, and then the conversations with my clients go something like this:

Client:   Five days?!

Me:       Yes, five business days.

Client:   Of course we are going to be responsive.  Why would it take us five business days to get back to our employee, and why does it have to be spelled out in the policy?

Me:       I understand you will get back to people promptly, but New York City law says that language has to be there.

Client:   And why do we have to spell out what happens if two people need the room at the same time?  We’ll just work it out.

Me:       I know you will, but again, the city requires it.

Some Provisions Are Effectively Meaningless

Another requirement that I have had to explain numerous times to clients is the provision under the New York State paid sick leave law that mandates employees be allowed to carry over any unused days from one year to the next, but allows the employer to cap the number of days used in any given year at the annual legal entitlement (i.e.: 40 hours or 56 hours, depending on the size of the employer).   That conversation generally proceeds like this:

Client:   What is this part about carrying over days but then not being able to use more than one year’s allotment?  What is the point of that?

Me:       It is intended to ensure that, for example, an employee who gets sick or injured early in the calendar year will have paid sick days available, carried over from the prior year.

Client:   Okay, I get that.  But we front-load the days at the start of each calendar year.  Everyone starts with a fresh bank with no accrual time.

Me:       I understand, and under New York City’s earlier version of this law, the city excused you from the carryover requirement if you front-loaded the days.  Employers asked New York State to do the same, but when the state issued its regulations, it expressly rejected that exception.

Client:   So we have to let employees carryover unused days, but we don’t ever have to allow them to actually use them?!

Me:       Exactly.

My client comes away bewildered, and I am frustrated that legislators and regulators have so little confidence in employers that they feel the need to be this prescriptive.

Two Universes of Employers

New York City and New York State in particular, but a trend I see repeating itself throughout the country, are continuously proposing and to a lesser degree adopting new employment law mandates, especially with regard to protecting employees’ time away from work.  Certainly there are employers that will only provide that which is legally required, and only when they feel they have no choice but to do so.  Often in my experience those organizations employ mainly hourly workers, for positions at the lower rungs of the pay scale.  The specificity written into the time off laws is intended to dictate obligations for those employers and thereby assure protections for their employees.

The challenge is that prescriptive legal mandates do not consider the other universe of employers – those that are vying to be an “employer of choice” and that tend to err on the generous side when it comes to leave and benefit policies.  Those employers often want their handbook policies to reflect the organization’s commitment to the welfare of their employees by outlining expectations for appropriate behavior, offering a generous safety net of leave time and benefits for employees to recharge and address issues personal to them and their families, and empowering employees to manage their time accordingly.

As I recounted in the synopses above, the organizations that want to be employers of choice recoil at policy language that implies they would be anything but generous and responsive to employees’ accommodation and leave requests.  They are striving for a friendly tone, not legalistic language.  Increasingly they are experimenting with various versions of unlimited time off.  “Take whatever you need, and we trust you to get the work done,” is the message they seek to send to their employees.

But prescriptive policies do not easily allow for that.  Mandates regarding carryover, approval processes, notice and usage often necessitate that the policies in the handbook take a tone quite different from and more complex than the generous message that these employers wish to project.

Considerations for Legislators and Regulators

Legal mandates need to recognize and consider both realities – ensuring a safety net of protections for more vulnerable workers, and empowering more generous organizations to create the supportive culture to which they aspire.  This means not only authorizing organizations to offer benefits and protections that are greater than those required by the law, but giving those organizations flexibility in their policy language, provided they can demonstrate in their implementation that the benefits employees receive meet or exceed that which the laws require.

By Tracey I. Levy

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25

March, 2022

3 Handbook Policy Requirements that New York Employers May Overlook

By Tracey I. Levy and Alexandra Lapes

Spring cleaning is a great time for employers to revisit their employee handbook policies to confirm that they comply with current legal obligations.  In addition to updates prompted by new legislation, there are more long-standing, New York-specific requirements that we find employers may overlook.  These include specific provisions on accommodation of breastfeeding employees, protection of reproductive health decisions, and smoking prohibitions.

Policy on Lactation Accommodation

All New York State employers are required to make reasonable efforts to provide their employees with a designated room or other private, sanitary location that is not a bathroom, as well as reasonable unpaid break time, for the purposes of expressing breast milk.  New York City law requires that employers have a written policy regarding the rights of nursing mothers to express milk at work, which it distributes to all employees upon hire.  The New York State Division of Labor Standards has similarly issued guidelines that employers are expected to provide employees who are returning to work following the birth of a child with written notice, either individually or through a written handbook policy, regarding their right to break time and an appropriate location for expressing breast milk.

A declarative statement as to the availability of appropriate time and space to express breast milk, or of the employer’s support of its breast-feeding employees, may not be sufficient.  The New York City law specifies a plethora of provisions that must be in the written policy, including:

  • a statement of the employee’s right of access to an appropriate lactation room and reasonable break time to use it;
  • how to request access to the designated lactation room;
  • reference to the employer’s obligation to respond to access requests within a reasonable timeframe, not to exceed five business days;
  • a procedure to follow when two or more individuals need to use the room at the same time; and
  • assure employees that if the request poses an undue hardship, the employer will engage in a cooperative dialogue with the employee to provide a reasonable accommodation.

Reproductive Health Decisions Policy

All employers in New York State are prohibited from discrimination based on an employee’s or the employee’s dependent’s reproductive health decisions.  The law further requires that any New York employer that provides an employee handbook to its employees must include in the handbook a notice of employee rights and remedies under the law.  This includes notice that:

  • employers are prohibited from accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making;
  • employers are prohibited from discriminating or retaliating against an employee based on the employee’s or dependent’s reproductive health decision making;
  • employers are prohibited from requiring an employee to sign a waiver of the employee’s right to make reproductive health decisions; and
  • employees have the right to bring a civil action against the employer for violation of the law and available remedies.

Some employers satisfy this obligation with a separate reproductive decisions policy.  Others may choose to incorporate the requisite provisions pertaining to reproductive health decisions into existing handbook policies that prohibit discrimination and retaliation and specify employees’ legal rights and available remedies under the laws against harassment, discrimination and retaliation.

Note: a March 29, 2022 federal district court decision, CompassCare et.al v. Cuomo, has permanently enjoined enforcement of the notice requirement with regard to reproductive health decisions, on the grounds that it violates the First Amendment.

Smoking Prohibitions in the Workplace

It has been several decades since New York State, New York City, and various counties adopted laws prohibiting smoking in the workplace and other public areas, such that those restrictions are no longer novel or surprising to most workers. This cultural shift may lead employers to overlook a long-standing requirement in many of the local laws, including from Westchester County and Suffolk County, that employers adopt and maintain written policies against smoking in the workplace. New York City’s law goes a bit further in its specificity.  The New York City law requires every employer to have and distribute to all new employees when hired a written policy outlining:

  • the legal prohibitions on smoking and the use of electronic cigarettes;
  • the protection from retaliation for employees or applicants who exercise their right to a smoke-free workplace; and
  • the employer’s procedure for an employee to raise concerns in the event of perceived retaliation.

Takeaways

The passage of time can dull any employer’s recollection of when handbook policies are simply memorializing employer expectations and practices, and when those policies are driven by legal requirements.  The latter must be maintained and updated as the law changes.  Now is a great time for employers to take stock of their handbook policies, and ensure they have the requisite provisions to comply with the law.

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