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27 May

May 2021 New York HR Legal Updates

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New York City Passes Executive Order on Sexual Harassment Reporting Requirements

Update Applicable to:
All employers contracting “human services” in New York, New York.

What happened?
On March 3, 2021, Executive Order No. 64 was passed by New York City Mayor de Blasio.

What are the details?
Executive Order No. 64 was passed into law and took effect on March 3, 2021. The order introduces new sexual harassment reporting requirements on all employers that contract with New York City agencies for “human services.”

“Human services” is defined as services provided to third parties, including social services such as day/foster/home care, homeless assistance, housing and shelter assistance, preventive services, youth services, and senior centers; health or medical services; legal services; employment assistance services, vocational and educational programs; and recreation programs. (See N.Y.C. Admin. Code § 6-129(c)(21).)

With this new order, covered organizations are required to make the following information available to the NYC Department of Investigation (DOI):

  • A copy of the organization’s sexual harassment policies, including complaint procedures.
  • A copy of any complaint or allegation of sexual harassment or retaliation brought by an employee, client, or any other person against the chief executive officer or equivalent principal of the organization, within 30 days of receipt of the complaint.
  • A copy of the final determination or judgment regarding any complaint or allegation.
  • Any additional information the DOI requests to effectuate its review of any investigation and determination.

The information above must be uploaded through the city’s Procurement and Sourcing Solutions Portal (PASSPort). The copies of the complaints or allegations that are raised must be provided to the DOI via the PASSPort system within 30 days of receipt. Any names or other identifying information of individuals, other than the accused that are mentioned in any complaint, final determination, or judgment can be redacted. The DOI reserves the right to request the information that was redacted from the covered organizations after the redacted information is uploaded.

The DOI will be reviewing the complaints or allegations, and gather their findings to provide to the city agencies for their considerations on any contract renewals or changes.

In addition, providers will be required to certify annually in writing that they have filed all required reports or that they have no information to report. While unclear, law firms advise the employer’s sexual harassment policy to be uploaded even in the absence of a complaint. 

The executive order can be read here.

Articles on the order can be found here and here.

More can be read about the PASSPort system here.

What do employers need to do?
To ensure compliance with the new order, covered organizations should revise their sexual harassment policies and implement training as needed. Any employers contracted with New York City agencies should also communicate with them to ensure they are complying when they update their contacts.

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New Workplace Safety Requirements of New York Employers

Update Applicable to:
Employers operating within New York State.

What happened?
On May 5, 2021, Governor Cuomo signed the NY Health and Essential Rights (HERO) Act, passing it into law. However, the governor promised changes to the legislation in the coming days.

What are the details?
The NY HERO Act will require the state’s Department of Labor (DOL) to create workplace safety standards for airborne infectious disease prevention. Employers are required to either adopt the DOL-issued standard that is relevant to their industry and workforce or to establish their disease prevention plan that must satisfy the minimum requirements set by the legislation. Employers will be required to post the plan they choose in the workplace and any employers who distribute an employee handbook must include the plan in their handbook and must distribute the plan to all employees after re-opening following a closure due to an airborne infectious disease. Businesses permitted to operate as of the effective date of the legislation must distribute the plan to existing employees as well.

Employers will be required to permit employees to form a joint labor-management workplace safety committee with employee and employer designees. The committee must be allowed to raise workplace health and safety concerns, review employer workplace safety policies, participate in government site visits relating to workplace health and safety standards, and attend committee meetings and trainings related to workplace health and safety standards. Each workplace that employs the legislation also includes anti-retaliation protections for employees who feel that the workplace is not safe or not adhering to the relevant plan.

The amendments clarify that employers will not need to create a disease prevention plan until 30 days after the DOL creates its model industry-specific protocols.  Additionally, employers would have 60 days following the DOL publication to provide such safety protocols to their employees. The window for the DOL to publish their standards was also extended an additional 30 days, to July 5, 2021. It is unclear how soon we can expect the NY DOL to have the example standards published. It appears that employers will not be required to establish their disease prevention plan until the DOL issues its standards.

Employees will need to provide an employer with 30 days’ notice and an opportunity to cure a violation before bringing a civil action unless the employee can show that the employer has demonstrated an unwillingness to cure a violation in bad faith. The employee may not bring civil action if the employer cures the alleged violation, as well as if six months pass from the date the employee had knowledge of the violation.

The Act can be found here.

Articles covering the bill and the amendments can be found here and here, respectively.

What do employers need to do?
Employers should monitor the NY DOL’s website (here) for the published industry standards. Then adopt the standards as they are published. Employers who wish to create own standards should adopt the DOL standard in the meantime until own standard is finished and ready to be implemented.

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