sexual harassment prevention

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Recently, New York State and New York City have continued the trend of enacting employee-friendly legislation and issuing broad enforcement guidance under their respective employment laws and regulations.  New York State and New York City employers should be aware of the following recent developments from 2018 and early 2019, and should take action to review and update their practices and policies for compliance.

New York City lactation room and policy laws — new policy requirement

Federal and New York State laws already require employers to make reasonable efforts to provide a room other than a bathroom where a nursing employee can express breast milk in privacy.  New York City recently passed two laws expanding those rights.  Effective March 18, 2019, New York City employers will be subject to additional specific requirements regarding the lactation room that must be made available to nursing mothers.  New York State law already requires that the lactation room be private, well-lit, and contain, at a minimum, a chair and small table, desk, counter, or other flat surface.  The New York City law will require additional amenities in the lactation room, including an electrical outlet and nearby access to running water, and that the employer provide a refrigerator suitable for breast milk storage in reasonable proximity to the employee’s work area.  Also effective March 18, 2019, New York City employers will be required to implement a written lactation room policy that meets specified requirements, and provide a copy of the policy to all employees upon hiring.  The policy must include a statement that employees have the right to request a lactation room, and identify a process by which employees may make such request (which process must meet certain minimum requirements).

“Cooperative Dialogue” amendments to New York City Human Rights Law

Effective October 15, 2018, New York City amended its Human Rights Law to require covered employers to engage in a “cooperative dialogue” with individuals who may be entitled to a reasonable accommodation related to religious beliefs, disability, pregnancy, childbirth or a related medical condition, or because the employee was a victim of domestic violence, sex offenses, or stalking.  The law requires that covered employers follow certain procedures when they receive a request for an accommodation, or when they have notice that an individual may need an accommodation, including the following:

In April 2018, we reported on New York State’s enactment of a new law aimed at preventing sexual harassment. We summarized this new law in detail in our legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws, and our Global Workplace Insider article, New York State’s new sexual harassment prevention laws will require action by all New York employers.  Under this law, New York State employers will need to comply with the following new requirements, among others:

  • By October 9, 2018, every New York State employer (regardless of size and including those who employ only domestic and household employees) is required to adopt an anti-sexual harassment policy that meets specified requirements; and
  • Before January 1, 2019, every New York State employer is required to conduct interactive sexual harassment prevention training that meets specified requirements. Thereafter, all new New York State employees must complete such training within 30 calendar days of beginning employment, and all New York State employees must receive such training at least once per year.

Recent New York State guidance on sexual harassment prevention measures

New York State has recently issued additional guidance on this new law, including a draft model anti-sexual harassment policy and complaint form, a draft training module, and draft frequently asked questions.  All of this guidance is in draft form, and the public can provide comments on the drafts on or before September 12, 2018.  Presumably, New York State will issue final guidance sometime after the end of the comment period and before the October 9, 2018 deadline for adopting a compliant anti-sexual harassment policy.  New York State employers who do not adopt the model documents issued by New York State can adopt individually tailored policies and training modules, as long as they meet the minimum requirements of the New York State law.  For this purpose, New York State issued documents summarizing the law’s minimum standards for sexual harassment prevention policies and training.  Note that there are certain provisions in the New York State draft model policy that seem to go beyond the minimum standards required of New York State employers, so for this and other reasons, employers may prefer to customize their own policies.  Additionally, it is unclear how far in advance of the October 9, 2018 deadline New York State will issue its final guidance and final model policy.  Accordingly, New York State employers will want to begin working now to get their policies into compliance by the October 9, 2018 deadline.