According to the New York State Department of Labor, regardless of the COVID-19 pandemic, employers must have a legally compliant written sexual harassment policy and complaint form in place. All employees must receive annual sexual harassment training, and new hires should receive sexual harassment training “as soon as possible” after commencement of employment. An employer that does not adopt the model policy, complaint form, and training program must adopt a policy, complaint form, and training program that meets the required minimum standards.
Also, while employers can continue to conduct the required sexual harassment training in person, it is important to have the flexibility during this pandemic to be able to conduct the training in a remote environment through the use of tools such as webinars, Zoom, or Teams (Skype) meetings.
Employers should be wary of readily available policy templates
Employers should be wary when using general templates to formulate employee policies as they may not include all of the information the regulations require. For example, during this COVID-19 pandemic there have been evolving regulations almost daily that make the use of general templates difficult to rely upon. One example is the recent New York State Travel Advisory which has caused employers to have to significantly modify their vacation policies.
Leniency for sexual harassment claims filed during COVID-19
On March 21, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) stopped closing investigations, which effectively extended the amount of time to file lawsuits. When an investigation is closed, the EEOC may issue a “right-to-sue letter” to the worker, who then has 90 days to file a federal lawsuit. By keeping the investigations open, workers have more time to pursue their claims.
Starting on August 12, 2020, the statute of limitations for filing a sexual harassment complaint with the Division of Human Rights is extended from one year to three years. The legislation gives victims of harassment a longer time period to file complaints with the Division of Human Rights. Complainants currently have three years to bring a case directly in court under the Human Rights Law.
Sexual harassment does not go away simply because employees can work from home.
Employers need to know that sexual harassment still exists and now is not the time to ease up on policies simply because many people are now working from home due to the pandemic. If anything, this is a time to readdress and update policies to reassure employees that professional behavior is still required at remote sites, in work meetings, and with customers or clients, wherever and however they are held. Although the dramatic rise in unemployment would typically cause an overall decrease in reports of sexual misconduct, this does not mean employees are no longer experiencing sexual harassment. Rather, employees may be afraid to report misconduct out of fear of retaliation or loss of their own jobs as the significant downturn of the economy could discourage reporting.
Aside from the unemployment increase, while the increase in remote work would suggest that in-person physical sexual misconduct will decrease, other forms of misconduct (such as verbal harassment) may be easier to commit when individuals are working from home as the environment is potentially more casual and under less scrutiny by employers and Human Resource departments.
Our Firm has extensive experience counseling employers and businesses on employee and labor law issues, and preparing applicable employee policies, particularly relating to the evolving regulations during the COVID-19 pandemic. If you have any questions related to this Legal Briefing or questions related to COVID-19 reopening rules and procedures, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.
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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC