Over the last month, my colleagues and I at Murtha Cullina have been blogging about the myriad federal and state statutes and regulations addressing COVID-19 issues in the workplace. At times, we’ve had to revise and update our blogs to reflect the latest agency guidance on these issues. Rather than re-post those blogs here, I invite you to visit our Employment Law Perspectives blog for the latest employment law information on the COVID-19 pandemic, including the eventual reopening the workplace. Thanks!
Over the last few weeks, our Labor & Employment Group has published blogs addressing federal and state developments involving COVID-19 issues affecting the workplace. Rather than publish those resources separately here, because that would be redundant of course, I invite you to visit our Group’s Employment Perspectives blog. Stay safe.
On the heels of the federal Families First Coronavirus Response Act signed into law yesterday, New York State has enacted broad legislation extending paid sick leave benefits to employees. The extent of paid sick leave is determined by employer size and revenue, and can be utilized by employees whether they are sick, or absent from work because of a “mandatory or precautionary order of quarantine or isolation” issued by “the state of New York, the department of health, local board of health, or any government entity duly authorized to issue such order due to COVID-19.” All of New York City is currently subject to such an order.
Under the legislation:
- Employees of small employers (1-10 employees) with annual revenue under $1 million receive unpaid sick days and job protection, and qualify for state-funded paid family leave and disability benefits.
If you are reading this post, you already know about SARS-CoV-2, the virus which causes coronavirus disease 2019 (“COVID-19”), or, coronavirus. There is no shortage of news to absorb and guidance to implement. Federal, state (CT, MA, NY), and local (Boston, Hartford, New Haven, New York) authorities offer directives and information. News outlets including The Washington Post and The New York Times have continuously updated coronavirus sections, sans paywalls. Johns Hopkins University is mapping coronavirus’s spread, in near real time. Here at Murtha Cullina, we are abiding by a common and useful refrain: “don’t panic, do prepare.”
So, how can you and your employees safely and effectively manage the myriad of challenges coronavirus has begun to present? The CDC has issued Interim Guidance for Businesses and Employers, with common sense and effective steps employers may take, including:
- Encourage sick employees to stay home, and implement flexible policies concerning sick leave and remote work.
In 2019, the New York State Legislature championed a host of employment laws that strengthen protections for employees. One of those laws codified new requirements for non-disclosure agreements, which are effective as of October 11, 2019. To ensure enforceability of non-disclosure provisions, employers must account for the following provisions:
- Non-disclosure agreements cannot prevent the confidentiality of facts underlying any discrimination claim, unless confidentiality is the complainant’s preference. Previously, in 2018, the legislature had barred confidentiality provisions in settlement of sexual harassment claims.
- If a complainant prefers confidentiality as described above, the employer must provide the confidentiality provision to that employee in plain English, or in the complainant’s primary language. The complainant has 21 days to consider the confidentiality provision, and 7 days after execution to revoke it. The confidentiality provision is not effective until the expiration of the revocation period, which is unlike the consideration and revocation applicable to releases of age discrimination claims under federal law; in the latter instance, employees are afforded 21 days to consider release of age claims, but are not required to take the full 21 days.
Effective May 10, 2020, New York City’s Human Rights Law will prohibit employers from requiring job applicants to submit to a marijuana or THC drug test as a condition of employment, with some limited exceptions. The NYC law is the first to ban pre-employment testing, but likely not the last in light of increasing momentum to legalize the recreational use of marijuana. Even states that permit medical or recreational use of marijuana have not enacted laws that prohibit employers from testing job applicants. New York City has opted to ban pre-employment testing even though recreational use of marijuana is not yet legal under New York State or City law. To read more, click here.
As we previously reported here, the “Stop Sexual Harassment in NYC Act” expanded the reach of the New York City Human Rights Law in the area of gender-based discrimination, including harassment. Among other things, as of April 1, 2019, the law mandates employers with 15 or more employees (which includes independent contractors) in the previous calendar year to conduct annual anti-sexual harassment training to all employees, including managers and supervisors. The law requires employers to train new employees who work more than 80 hours in a calendar year within 90 days of initial hire. Read all about it here.
New York City continues to advance a progressive workers’ rights agenda that places employees who work in the city in a better position than those who work outside the five boroughs.
Last week, Mayor Bill de Blasio pledged that New York City would seek to pass a mandatory paid two-week vacation law for private-sector employees. Although a proposed bill has not been released, it appears that it will be modeled on New York City’s Earned Safe and Sick Time Act, which applies to employers of at least five employees and confers benefits on workers who work at least 80 hours a year.
On October 17, 2018, the New York City Council passed several bills, referred to as a parental empowerment package, which will likely be signed by the mayor. These bills require employers with 15 or more employees to provide a “lactation space” and “lactation accommodation” for employees who need to express and store breast milk. Specifically, employers will be required to designate a private sanitary place that is not a restroom for purposes of expressing milk. Although since 2008 New York State law has required employers to allow nursing mothers with breaks to express milk, New York City will require a dedicated room for this purpose. In addition to providing a lactation space, which must be in reasonable proximity to the employee’s work area, the law will also require that employers provide a refrigerator that is suitable for breast milk storage.
For employers that are unable to designate a room solely for lactation purposes, the law will permit employers to use a room that is also used for other purposes provided that the primary function of the room will be as a lactation space. An employer will be exempt from the requirement of providing a lactation space if the employer can demonstrate that it would pose an undue hardship in the form of “significant expense or operational difficulty.” Nevertheless, the standard for demonstrating an undue hardship would be high and employers would still be required to accommodate the needs of the employee.
The law will go into effect 120 days after the mayor signs it. In the meantime, employers should prepare now to identify a room that qualifies as a lactation space, and revisit their lactation policies, which will be required to conform to the law’s specific requirement. We are available to answer questions on this law, and as always, will keep you posted on developments, including the effective date of the proposed law.
On October 1, 2018, New York State released final documents and resources in connection with its new sexual harassment prevention requirements. Along with the updated guidelines, the deadline to provide a first round of sexual harassment prevention training has been extended from January 1, 2019 to October 9, 2019. Despite that New York State has extended the deadline for providing sexual harassment prevention training, New York City employers must continue to satisfy the requirements of the Stop Sexual Harassment in NYC Act, which as previously reported, requires all employers with 15 or more employees to conduct sexual harassment prevention training beginning on April 1, 2019. Read more about it here.