Law and the Workplace

Coronavirus and the Workplace: What Employers Need To Know

Coronovirus

*** Last Updated: February 13, 2020 ***

News that cases of the newly-identified 2019 Novel Coronavirus continue to spread has prompted employers to think about employee safety and ways to address disease prevention in the workplace. Although, according to the Occupational Safety and Health Administration (OSHA), “most American workers are not at significant risk of infection” at this time, the situation is evolving, and it is never too early for employers to consider how they can address employee concerns, help prevent an outbreak, or address one if it occurs. Employers should also be aware of legal pitfalls that they may encounter when attempting to protect their employees from the virus.

The following addresses some of the key questions employers may have regarding the Coronavirus threat.  Employers should also note that the CDC has released guidance specifically addressed to businesses outlining recommendations and best practices on protecting the workplace.  You can read more about this latest guidance on our recent blog post.

What is the Coronavirus and How Is It Transmitted?

At this point, relatively little is still known about the 2019 Novel Coronavirus, more commonly known as the “Coronavirus.” According to the CDC, the initial reports of the illness originated in Wuhan, China, where people likely contracted the virus from animals at a seafood and animal market. Experts now believe that the virus is spreading from human-to-human when an infected person coughs or sneezes, similar to the spread of a cold or flu. However, it is still too early to know how easily the virus is transmitted between people.  On January 30, 2020, the first case of person-to-person transmission in the United States (between a woman previously diagnosed with Coronavirus after returning from Wuhan and her husband) was reported.  Presently, the number of confirmed cases in the United States is reported by the CDC to be at 15, with cases remaining under investigation in a number of states.

What Are the Primary Symptoms of the Coronavirus?

In the confirmed cases of Coronavirus thus far, affected individuals have reported mild to severe respiratory symptoms, fever, cough, shortness of breath, and breathing difficulties. In severe cases, the virus has led to pneumonia and kidney failure and has resulted in an increasing number of deaths (the majority of which have occurred in Wuhan; however, the Philippines reported the first death outside of China on February 1, 2020, and a death also has been reported in Hong Kong).  The CDC believes at this time that symptoms may appear within two to fourteen days after exposure.  However, some infected individuals have shown little to no symptoms.

How Can Spread of the Coronavirus Be Prevented?

Because there is presently no Coronavirus vaccine available, the CDC is recommending standard precautions to avoid the spread of respiratory viruses, such as washing hands with soap and water for at least 20 seconds, or, if soap is not available, using hand sanitizer; avoiding close contact with people who are sick; staying at home when you are sick; and disinfecting frequently touched objects and surfaces.

What If My Employees Travel to China For Business?

As of January 27, 2020, the CDC has issued a level 3 health travel notice (the highest threat level) recommending that people avoid all nonessential travel to China.

On January 30, 2020, the World Health Organization (WHO) declared a global health emergency over the spread of Coronavirus. The WHO’s statement indicates that further international exportation of the virus is expected, and that cases may appear in any country.

Following the WHO’s global health emergency declaration, on January 30, the U.S State Department raised its China travel advisory to Level 4: Do Not Travel.  The advisory states that “[t]hose currently in China should consider departing using commercial means” and that “[t]he U.S. government has limited ability to provide emergency services to U.S. citizens in Hubei province.”

On January 31, 2020, U.S. Health and Human Services Secretary Alex Azar stated that a public health emergency has been declared in the United States and, effective 5:00pm EST on Sunday, February 2, 2020:

  • all U.S. citizens returning to the United States who have been in Hubei province in the two weeks before their return will be subject to up to 14 days of mandatory quarantine; and
  • U.S. citizens returning from the rest of mainland China in the two weeks prior will face a health screening at a select number of ports of entry and will also be subject to up to 14 days of “monitored self-quarantine” to ensure they pose no health risk.

In addition, President Trump has signed a proclamation suspending the entry into the U.S. of foreign nationals who have traveled in China in the last two weeks.  Foreign nationals who are the immediate family of U.S. citizens or permanent residents presently are exempt.

With all of these rapidly changing developments in mind, employers whose employees travel to and from China should consider the following:

  • Consider whether to limit travel to affected areas. The General Duty Clause of the Occupational Safety and Health Act (also referred to as OSHA) requires employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.”  Although OSHA has not promulgated specific standards covering the Coronavirus, requiring employees to engage in business travel to China (or any other areas in which the risk of contagion is heightened) could create risk under the General Duty Clause, particularly in light of the CDC and State Department travel warnings and the actions being taken by the U.S. government to impose quarantine measures on returning travelers.  For that reason, employers whose business may involve travel to China (or other areas that become subject to travel restrictions or otherwise experience an increase in the spread of the virus) should strongly consider other available options for employees for the duration of the threat, such as videoconferencing.

By the same token, employers should also be prepared to respond to employees who may express concerns about traveling to affected areas due to the virus.  While an employer generally has broad discretion to decide the duties and requirements of a job and to discipline employees who fail to fulfill those requirements, as a practical matter employers may wish to consider offering employees reasonable alternatives to such travel.

Finally, while employers may implement restrictions on work-related travel to affected areas, employers should tread more carefully when attempting to police personal, non-work-related travel. That said, recent decisions in the Seventh, Eighth, and Eleventh Circuits have held that the disability discrimination protections of the ADA do not apply where an employer takes an employment action based on the potential for an employee to become ill and disabled in the future.  Specifically, the Eleventh Circuit found no liability under the ADA where an employer terminated an employee who requested time off to travel to Ghana to visit family because of the perceived risk that the employee would contract the Ebola virus, due to recent outbreaks of the disease in neighboring countries.  While courts have tended to take this view, it is worth noting that the EEOC has argued on at least one occasion that an employer acting on a potential future health condition may be viewed as “regarding” an employee as disabled as long as the condition otherwise qualifies as a disability under the law.  For this reason, employers should consider the risks (as well as the practicalities) relating to imposing a ban on personal, non-work-related travel to affected areas.

  • Provide relevant safety information to employees. Employers whose employees travel to affected areas should provide information to their employees about how the Coronavirus is transmitted, its symptoms, and how to avoid exposure – utilizing trusted and reputable sources such as the CDC. Employers would be well advised to also provide these employees with resources and contact information for local health departments and the CDC.
  • Understand that employee travel may be interrupted. The Chinese government has closed transit within and out of Wuhan and certain other areas of the Hubei Province. Hong Kong has also imposed certain restrictions on travel to and from the Chinese mainland and is imposing 14-day quarantines on individuals arriving from China. In addition, Russia has closed its Far Eastern border with China, as well as limited railway service with China.  In the U.S., multiple major air carriers are canceling flights to and from parts of China, and the United States is re-routing passengers from Wuhan, China to certain designated airports (including Chicago O’Hare, Atlanta, New York JFK, Los Angeles, and San Francisco) for enhanced screening, which may take more time than usual screenings for common viruses. And as noted above, mandatory quarantine rules are being imposed for U.S. citizens who have traveled to Hubei province.

What Should I Do if an Employee Has Recently Traveled to China or Otherwise May Have Been Exposed to the Coronavirus?

Employers should remember that the Americans with Disabilities Act (ADA) places certain restrictions on the kinds of inquiries that can be made into an employee’s medical status. Specifically, the ADA prohibits employers from making disability-related inquiries and requiring medical examinations, unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) where the employer has a reasonable belief that the employee poses a direct threat to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

According to Pandemic Preparedness Guidance published in 2009 by the Equal Employment Opportunity Commission (EEOC) in the midst of the H1N1 influenza outbreak, whether a particular outbreak rises to the level of a “direct threat” depends on the severity of the illness.  Employers should look to the most up-to-date assessments being made by the CDC or other public health authorities, as they relate to the employer’s location, to determine the severity level of an illness and, in turn, whether an employee who potentially has been exposed to the illness may constitute a “direct threat.”  Employers should not rely on speculation or unofficial information when making determinations about whether there is a direct threat in a particular circumstance.  At the moment, the CDC is not classifying the Coronavirus as a pandemic, but the situation continues to rapidly evolve and we will provide updates should additional guidance be released by the CDC or other public health officials on this important issue.

All this being said, employers should keep in mind the following when it comes to employees who have traveled to affected areas:

  • Employers need not wait until an employee returning from travel develops symptoms to inquire about exposure to the Coronavirus. Inquiring about whether an employee has traveled to an affected area or about possible exposure to a contagious illness during such travel would not constitute a disability-related inquiry.  However, as discussed below, the extent to which an employer may act on the information received will depend on the most recent information available from the CDC and other public health officials.  Further, employers inquiring into whether employees have traveled to affected areas should do so of all employees known or believed to have recently traveled, rather than directing such inquiries only to employees of certain races, ethnicities, or national origins. Finally, employers should be mindful to keep confidential all medical-related information received from an employee, in accordance with the ADA.
  • Employers may require employees who have traveled to China to stay home. As discussed above, the United States is imposing a 14-day mandatory quarantine on individuals who have traveled to Hubei province, and 14-days of “monitored self-quarantine” for individuals returning from other parts of mainland China.  In light of this development, an employer may require an employee who is returning from travel to these areas to stay home for the suggested period of time.
  • Under certain circumstances, employers may require employees who have traveled to other affected areas to stay home. If an employee has traveled to another affected area and has reported either possible contact with an affected person and/or Coronavirus symptoms, an employer can require the employee to stay home until medically cleared to return to work. However, an employer who is considering a blanket requirement that employees who have travelled to other affected areas remain home – even absent potential exposure to the virus – should consult with counsel.  Employers should continue to monitor the CDC website and other news sources for further developments.

What Other Things Should Employers Be Thinking About When it Comes to the Coronavirus?

  • Employers may – and should – send employees home if they exhibit potential symptoms of contagious illnesses at work. The EEOC has said that sending an employee home who displays symptoms of contagious illness would not run afoul of the ADA’s restrictions on disability-related actions because: (i) if the illness ultimately turns out to be relatively mild or “run of the mill” (such as seasonal influenza), then it would not have constituted a covered disability in the first place; and (ii) if the illness does turn out to be severe (such that it may constitute a disability under the law), then the actions would be warranted under a direct threat analysis. In either case, an employer can send an employee home who is displaying symptoms of contagious illness, even if this is against the employee’s wishes.  Employers should also consider making clear in their policies that employees who have symptoms of a potential contagious illness must not report to work while they are sick.
  • Determine whether the FMLA or other leave laws may apply. An employee who is experiencing a serious health condition or who requires time to care for a family member with such a condition may be entitled to take unpaid leave under the federal Family and Medical Leave Act (FMLA) or state-law analogues.  Employees may also be eligible for leave as a reasonable accommodation under the ADA or related state or local law, if the underlying condition constitutes a qualifying disability.  However, employees generally are not entitled to take FMLA or reasonable accommodation leave to stay at home to avoid getting sick (though an exception may exist where a preexisting medical condition is likely to be worsened by exposure to a contagious disease). Furthermore, employees in certain jurisdictions may be entitled to paid sick leave if needed to care for themselves or a sick family member in the event of an illness, or if their workplace or a child’s school or day care is closed due to a public health emergency.
  • Consider whether OSHA requirements may apply. While, as noted above, OSHA has not promulgated specific standards covering the Coronavirus, it has issued a notice indicating that employers should be aware of the following general standards to which employers may be subject under OSHA:
    • General Duty Clause: As discussed above, the OSHA General Duty Clause requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.” To that end, there are some readily achievable steps that employers can take to prevent the spread of the Coronavirus (and other contagious illnesses) within the workplace, such as: providing hand sanitizer to employees, ensuring that surfaces and eating areas are disinfected regularly, and encouraging employees who are sick to stay home. Employers also may start to consider certain policy changes they may wish to implement in response to the Coronavirus should the situation become more severe in the U.S., such as allowing employees to work from home.
    • Personal Protective Equipment: OSHA requires that protective equipment, clothing, and barriers be provided whenever it is necessary to prevent employees from being exposed to environmental hazards. Employers are required to assess the workplace, determine if hazards are present, and if so, select and have employees use protective equipment. Employers whose employees may encounter individuals infected with the Coronavirus, such as those in the healthcare and travel industries, should begin to consider what protective equipment would be necessary to protect its workforce should the virus begin to spread within the United States.
    • Recordkeeping and Reporting Requirements: OSHA requires that certain employers keep a record of certain work-related illness and injuries (often referred to as an OSHA Form 300 log). While there is a regulatory exemption for recording instances of the standard cold and flu, OSHA has deemed the 2019 Novel Coronavirus a recordable illness when a worker is infected on the job. In addition, certain employers may be subject to reporting requirements under state and local law if they have a reasonable belief that a significant disease is present in the workplace.
    • Employers in Higher-Risk Industries: While, again, OSHA has yet to issue any standards or controls specific to Coronavirus, employers operating in industries where employees may be at a potential increased risk of exposure should prepare for the possibility that heightened requirements may be put in place. In the past, OSHA has issued such guidance for employers in industries such as healthcare, airlines, and mortuary services, such as during the MERS outbreak in 2015.

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Employers, particularly those whose employees may be likely to encounter the Coronavirus, should consult with counsel to determine whether any of the above precautions may be necessary.

Information about the Coronavirus is constantly developing, so employers also should continue to refer to the CDC, WHO, and OSHA websites for the latest on appropriate precautions, including changes to travel notices.  Of course, we will continue to monitor this situation and report on any updates as they develop.

 

DC Employers Must Provide Paid Family Leave Law Notice By February 1, 2020

As we previously reported, on July 1, 2020, employees in D.C. will be eligible to receive benefits under the D.C. Paid Family Leave law, which provides employees with up to eight weeks of paid leave to care for a new child, six weeks of paid leave to care for a sick family member, and two weeks of paid leave for a personal illness. Although employees will not be able to receive Paid Family Leave benefits until later this year, employers with employees in D.C. must provide employees with notice of the law by February 1, 2020.

The D.C. government has published a notice that provides employees with information about the Paid Family Leave law, including covered employees and events, how to apply for benefits, and benefit amounts. Employers with employees in D.C. must post this notice in “a conspicuous place” at their worksites, which, for PFL purposes, are “location[s] where business is conducted for where services or industrial operations are performed.” Employers must also “send a poster to covered workers who work remotely or predominately telework so that they can hang the posters at their individual worksites.”

Additionally, beginning February 1, 2020, employers must provide employees with the notice in electronic or physical form: (1) at the time of hiring; (2) at least once between February 1, 2020 and February 1, 2021 and a least once a year every following year; and (3) whenever the employer “receives direct notice” of an employee’s need to take leave for an event that could qualify for benefits under the Paid Family Leave program.

Failure to comply with the law’s notice requirements can result in civil penalties up to $100 for each covered employee to whom the notice was not delivered and $100 for each day an employer fails to post the notice in a conspicuous place. We will continue to track developments regarding this law and provide timely updates.

 

Mandatory Severance Pay for Mass Layoffs Looms in New Jersey

UPDATE – on January 21, 2020, Governor Phil Murphy signed the bill into law.  It will take effect in 180 days (i.e., on July 19, 2020).

The New Jersey Senate has passed a bill (S.3170) that would amend the New Jersey Millville Dallas Airmotive Plant Loss Job Notification Act, more commonly referred to as the “NJ WARN Act,” to require severance payments and increase notification requirements for employees impacted by certain mass layoffs, transfers or terminations of operations.

Currently under the NJ WARN Act, employers with 100 or more full-time employees must provide 60 days’ notice to affected full-time employees in the event of a mass layoff or transfer or termination of operations. A mass layoff is defined as a reduction in force, during a 30-day period, that results in the termination of 500 or more full-time employees or the termination of 50 or more full-time employees representing at least one-third of an employer’s total workforce. Under the current law, employers are only required to make severance payments to affected employees if they fail to provide such employees with the required amount of notice of termination or layoff.

The pending bill, if enacted, would:

  • revise the definition of a “mass layoff” to mean a reduction in force, during a 30-day period, that results in the termination of 50 or more employees, regardless of full-time or part-time classification, at or reporting to an “establishment” (as defined in the bill);
  • require employers with 100 or more employees (regardless of full-time or part-time status) to provide at least 90 days’ notice to impacted employees before a mass layoff, transfer of operations to another location, or shutdown of an establishment;
  • require employers to pay severance of one week’s wages for every year of an impacted employee’s service in the event of a mass layoff or shutdown/transfer resulting in the termination of 50 or more employees in an establishment during any 30-day period, regardless of whether or not appropriate notice is provided to affected employees;
  • require employers who fail to satisfy the 90-day notice requirement to pay an additional four weeks of severance to affected employees; and
  • expand the definition of “establishment” to include either a single location or a group of all of an employer’s locations in New Jersey (currently, the NJ WARN Act defines an establishment as a single location or a group of contiguous locations which form an office or industrial park, or separate buildings across the street from each other).

Covered employees subject to a collective bargaining agreement or other severance plan or policy would be eligible for the statutory severance described above or any severance pay provided pursuant to the CBA or severance plan/policy, whichever is greater. Employees would not be permitted to waive the statutory right to severance except with the approval of a court or the Commissioner of Labor and Workforce Development.

In another notable change, the bill would broadly define an employer to include “any individual, partnership, association, corporation, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee, and includes any person who, directly or indirectly, owns and operates the nominal employer, or owns a corporate subsidiary that, directly or indirectly, owns and operates the nominal employer or makes the decision responsible for the employment action that gives rise to a mass layoff subject to notification.” Accordingly, the law, if enacted, would impose liability on individuals acting in the interest of an employer, including individuals who own the employing entity or are responsible for the decision to effectuate the layoff.

The bill passed the state Senate with a vote of 27-13 on December 16, 2019 and a nearly identical bill (A.5145) awaits a state Assembly floor vote. We will continue to monitor and report on further developments regarding this bill.

New York State Department of Labor Publishes Guidance on Salary History Inquiry Law

The New York State Department of Labor (NYSDOL) has published guidance on the state’s salary history inquiry law, which went into effect on January 6, 2020.

As we previously reported, the law prohibits employers from:

  • Relying on the wage or salary history of an applicant in determining whether to offer employment to such individual or in determining the wages or salary for such individual;
  • Orally or in writing, seeking, requesting, or requiring the wage or salary history from an applicant or current employee as a condition of being interviewed, or as a condition of continuing to be considered for an offer of employment, or as a condition of employment or promotion;
  • Orally or in writing, seeking, requesting, or requiring the wage or salary history of an applicant or current employee from a current or former employer, current or former employee, or agent of the applicant or current employee’s current or former employer;
  • Refusing to interview, hire, promote, otherwise employ, or otherwise retaliating against an applicant or current employee based on prior wage or salary history;
  • Refusing to interview, hire, promote, otherwise employ, or otherwise retaliating against an applicant or current employee because the individual did not provide wage or salary history in accordance with the law; or
  • Refusing to interview, hire, promote, otherwise employ, or otherwise retaliating against an applicant or current or former employee because the individual filed a complaint with the State’s department of labor alleging a violation of the law.

The guidance addresses and clarifies a number of details about the new law. Below are some of the key takeaways.

Prohibited Employer Practices

Under the law, applicants and employees are permitted to voluntarily disclose their pay history, including for the purpose of negotiating compensation. The guidance clarifies that if “an applicant voluntarily and without prompting discloses salary history information, the prospective employer may factor in that voluntarily disclosed information in determining the salary for that position.” However, employers may not rely on voluntarily disclosed salary history information “to justify a pay difference between employees of different or various protected classes who are performing substantially similar work,” because such reliance would violate the state’s Equal Pay Act.

In addition, employers may not pose “optional” salary history questions on a job application seeking a voluntary response. In fact, the guidance suggests that employers may consider proactively stating in job postings that it does not collect salary history information from applicants. Employers in New York City should also be mindful of the existing prohibition under the City’s salary history inquiry law from using applications with boilerplate salary history questions, even when the application includes a disclaimer that individuals applying for jobs in the City need not answer the question.

Coverage for Current Employees and Independent Contractors

The guidance makes clear that unlike other salary history bans (including the New York City law), the state law applies to current employees. Therefore, while employers cannot ask about pay from other jobs, they “may consider information already in their possession for existing employees (i.e. a current employee’s current salary or benefits being paid by that employer).” Employers in New York City should, of course, follow the state law with respect to current employees as this law is more protective than its City counterpart.

The guidance also clarifies that applicants (including part-time, seasonal and temporary workers, regardless of immigration status) are covered by the law; however, “bona fide independent contractors, freelance workers or other contract workers” are not covered “unless they work through an employment agency.” As we previously reported, the New York City Human Rights Law has recently been amended to expand protections under the law to freelancers and independent contractors. While the NYCHRL also contains prohibitions and limitations on employers’ ability to inquire or obtain salary history information about applicants, it remains to be seen whether and how such restrictions may be applied to independent contractors.

Forms of Covered Compensation

The guidance provides very little detail about which forms of compensation are covered by the law; it states broadly that employers cannot ask about “any information concerning an applicant’s salary history,” including “compensation and benefits.” On the other hand, the New York City law explicitly allows employers to ask candidates about deferred compensation or unvested equity than an applicant would have to forego in accepting a new job, and the NYC Commission on Human Rights’ guidance similarly allows employers to ask for the value of any counteroffers. Absent further guidance from the State to the contrary, inquiries about deferred compensation and unvested equity do not appear to be permitted under the state law.

Geographic Scope

The guidance clarifies that the law applies to jobs that are based in New York, regardless of whether the employer is based within or outside of the state, and even if the interview process takes place virtually, by telephone, or in another state.

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We will continue to report on updates regarding this law and any further guidance issued by the NYSDOL. In the meantime, employers in New York should review their job applications and hiring processes to ensure compliance with these new requirements.

New York City Extends Human Rights Law Protections and Training Requirements to Freelancers and Independent Contractors

NYC Commission on Human Rights

Effective January 11, 2020, the New York City Human Rights Law (“NYCHRL”) has been amended to expand protections under the law to freelancers and independent contractors.  Significantly, this includes the requirement that certain contractors now complete annual sexual harassment prevention training in the same manner as covered employees.  Contractors also are now eligible for reasonable accommodations under the law.  The amendments also clarify how the four-employee threshold for coverage under the NYCHRL is calculated.

Expanded Protections and Training Requirements

The new law amends Section 8-107(23) of the NYCHRL to state that “[t]he protections of this chapter relating to employees apply to interns, freelancers and independent contractors.”  (The law previously expanded provisions of the NYCHRL to interns by amendment in 2014.)  Thus, freelancers and independent contractors now have the same protections against discrimination, harassment and retaliation under the NYCHRL as employees, including, presumptively, the same right to seek recourse by filing claims with NYC Commission on Human Rights (the “Commission”) or bringing suit in court.

The Commission has issued guidance interpreting this expansion of protections to include the requirement that independent contractors and freelancers who work for an employer with 15 or more workers (including employees, interns, and contractors) and who work: (a) more than 80 hours in a calendar year, and (b) for at least 90 days (which do not need to be consecutive) must complete the annual sexual harassment prevention training already required of employees and interns under the NYCHRL.  Contractors who do not meet this 80 hour/90 day threshold do not need to be trained.  Previously, the Commission recommended such training for independent contractors, but did not require it.

The guidance states that “[i]ndividuals who must be trained do not need to take the training at each workplace where they work over the course of a year,” and “[i]ndependent contractors and freelancers may provide proof of completion of one sexual harassment prevention training to multiple workplaces and need not repeat the training at multiple workplaces.”

The guidance further states that contractors and freelancers now have the right to request and receive reasonable accommodations for needs related to disability, pregnancy, lactation, religious observances, and status as victims of domestic violence, sexual offenses, or stalking in the same manner as such accommodations are available to employees.

Changes to Determining Coverage Under the NYCHRL

The new law further amends the definition of a covered “employer” under the NYCHRL to provide that it does not include any employer “that has fewer than four persons in the employ of such employer at all times during the period beginning twelve months before the start of an unlawful discriminatory practice and continuing through the end of such unlawful discriminatory practice.”  Previously, the law did not clearly specify the period over which employee numbers should be considered in determining whether the four employee threshold had been met.

The amendments also now provide that the parent, spouse, domestic partner, or child of an employer who is employed by that employer must be counted in determining coverage.  Additionally, independent contractors working “in furtherance of an employer’s business enterprise” must also be included in the count for that employer, regardless of whether such contractors are themselves employers (previously, contractors with their own employees were not included in the determination of coverage).  It is noted that the four employee threshold does not apply, and employers of all sizes are covered by, the NYCHRL’s gender-based harassment provisions.

Impact of the Amendments on Employers

In addition to broadening sexual harassment training and reasonable accommodation obligations, these amendments will expand potential liability for employers faced with discrimination, harassment, or retaliation claims.

It is noted that, as of October 11, 2019, the New York State Human Rights Law (“State HRL”) expanded its protections against discrimination to contractors, subcontractors, vendors, consultants, or other persons providing services pursuant to a contract.  And, effective February 8, 2020, all employers within the state of New York will be covered by the state HRL, regardless of size (presently, the State HRL only applies to employers with four or more employees, except with regard to provisions regarding sexual harassment, which apply to employers of all sizes).

While the recently enacted City protections for contractors and freelancers are similar to those that have already been enacted at the State level, the NYCHRL amendments may nevertheless be significant for NYC employers because, in addition to the new training and reasonable accommodation requirements, the City law is distinct from the State law in the following ways:

  • While both the state HRL and the NYCHRL prohibit discrimination and harassment on the basis on several protected categories, the NYCHRL includes additional categories that are not covered under state law, including caregiver status and unemployment status.
  • The NYCHRL includes the NYC Fair Chance Act, which, among other things, prohibits inquiries into the criminal history of job applicants until after a conditional offer of employment has been made. It also sets forth strict limitations on the use of credit checks in the hiring process.
  • The NYCHRL also contains prohibitions and limitations on employers’ ability to inquire into or obtain salary history information about applicants. While New York state has also recently enacted a law regarding salary history inquiries, the state law makes clear that it does not apply to independent contractors or freelancers unless such individuals work through an employment agency.

It is unclear whether the Commission will issue further guidance on the scope of protections under the recent amendments, but we will continue to monitor and report on any further developments.

In the meantime, NYC employers who utilize independent contractors or freelancers should review and update their existing policies where necessary and ensure relevant personnel are trained on these new requirements.  Employers with 15 or more workers should also take steps to ensure that freelancers and independent contractors who meet the 80 hour/90 day threshold discussed above are provided with annual sexual harassment training as required under NYC law.

[Podcast]: Reductions in Force

In this episode of The Proskauer Brief, partners Harris Mufson and Evandro Gigante discuss considerations and best practices associated with reductions in force.  Companies that make a business decision to reduce its staffing should consider what goals they are looking to achieve. Is it cost reduction or a consolidation of positions?  Or is it to weed out lower performing employees?  These considerations will tend to inform whether the employer decides to do a voluntary reduction in force or involuntary reduction in force.  Tune as we discuss practical tips for employers considering a RIF.

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