New York Employment Law Winter Update

March 2019

As winter turns into spring, there are a number of important changes in the law that employers – in New York City, Westchester County and beyond – should be aware of going forward and update their employment policies accordingly.

NYC’s Sexual Harassment Training Deadline is April 1, 2019

As explained in our previous employment alert, all New York City employers must conduct annual interactive sexual harassment training effective April 1, 2019. While FAQs released by the NYC Commission on Human Rights (“CHR”) indicate that the CHR and NYS Division of Human Rights will be releasing a joint online interactive training that may be used to comply with training obligations under both the City and State laws, that model policy has not yet been released (but is slated to debut on or before April 1, 2019). 

NYC Employers Must Provide Additional Accommodations to Lactating Employees

Effective March 18, 2019, New York City employers with four or more employees must provide employees with a compliant lactation room (Int. No. 879-A) and adopt a lactation accommodation policy (Int. No. 905-A). The NYC laws expand upon New York State’s existing requirements that employers provide nursing mothers with breaks to express breast milk and to make “reasonable efforts” to provide a private lactation room or area. The NYC laws require, for example, that: (1) employers provide a lactation room that includes an electrical outlet and is nearby access to running water; and (2) that the employee be provided with the ability to use a refrigerator suitable for the storage of breast milk that is in reasonable proximity to the employee’s work area.

The NYC lactation accommodation policy must: (1) specify how an employee may submit a request for a lactation room; (2) require the employer to respond to the lactation room request in a reasonable amount of time (not to exceed five business days); (3) provide a procedure in the event two employees wish to use the same lactation room at the same time; (4) state that the employer will provide reasonable break times for an employee to express breast milk in accordance with New York State law; and (5) state that if the request for a lactation room poses an undue hardship on the employer, the employer shall engage in a cooperative dialogue with the employee.

NYC Employees May Not Be Discriminated Against for “Sexual and Reproductive Health Decisions”

Effective May 20, 2019, an employee’s “sexual and reproductive health decisions” will be a protected class under the New York City Human Rights Law. This protected category includes a prohibition on discriminating against employees for the decision to have an abortion, undergo in vitro fertilization, or seek treatment for a sexually transmitted infection, among other reasons.

The NYC CHR Has Released Guidance Concerning Race Discrimination on the Basis of Hair

The CHR’s guidance, found here, prohibits workplace grooming and/or appearance policies that “ban, limit, or otherwise restrict natural hair or hairstyles associated with Black people generally violate the NYCHRL’s anti-discrimination provisions.” The CHR further noted that while this guidance is aimed towards race discrimination, employer grooming policies may also give rise to discrimination claims on the basis of religion, disability, age or gender. Employers should review the CHR’s guidance and their workplace grooming policies to ensure that such policies neutral and inclusive.

New York State Prohibits Discrimination on the Basis of Gender or Gender Identity

With the passage of the Gender Expression Non-Discrimination Act (“GENDA”), all New York employers are prohibited, as of February 24, 2019, from discriminating against employees on the basis of their “gender identity or expression”, which is defined to mean “a person’s actual or perceived identity, appearance, behavior, expression or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”

Westchester County Bans the Box

Effective March 4, 2019, Westchester County employers may not make any inquiry into a job applicant’s arrest or criminal history until after the applicant has made a preliminary or initial application for employment. As such, under Westchester’s Ban the Box law, employers may not inquire about an applicant’s criminal history on a job application, nor may they use employment advertisements, solicitations or publications containing any “limitation, or specification in employment based on a person’s arrest record or criminal conviction.”

While Westchester employers, unlike their counterparts in NYC, may ask questions about an applicant’s criminal history prior to making a conditional offer of employment, Westchester employers are nevertheless required to perform an analysis of the applicant’s criminal record and other factors as set forth in New York State Correction Law Article 23-A before taking any adverse employment action based upon the applicant’s criminal history.

Paid Sick Leave Comes to Westchester

Effective April 10, 2019, Westchester employers with five or more employees are entitled to earn and use, at a minimum, up to 40 hours of paid sick time in a year. Employers with fewer than five employees must provide up to 40 hours of unpaid sick time. Under the law, employees accrue one hour of sick leave for every 30 hours worked, and accrual begins at the commencement of employment or 90 days after the effective date of the law, whichever is later.

Employees may use their sick time for: (1) the employee’s or a family member’s mental or physical illness, injury, or health condition, or for preventative care; (2) the care of the employee or a family member with a communicable disease that presents a danger to others; or (3) the closure of the employee’s place of business, or school or care center attended by the employee’s child due to a public health emergency.

While the above is a snapshot of an employee’s entitlements under Westchester’s Earned Sick Leave Law, employers should be begin preparing as soon as possible to ensure that they have a compliant sick leave policy in place.

For more information on this issue or other employment matters, please contact:

Carol Goodman at [email protected] or +1 212 592 1465

© 2019 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.