Under New York City Anti-Discrimination Law, Who Is an Employer?

Who Can Be a Defendant in a Discrimination Lawsuit? New York City anti-discrimination law gives employees the right to sue an employer for discrimination under the New York City Human Rights Act. Stephen D. Hans & Associates, P.C. has decades of experience defending employers in discrimination lawsuits. Consequently, we took notice regarding this recent landmark ruling rendered by the Court of Appeals. Details of the Case and the Court’s Decision Based on New York City Anti-discrimination Law In Doe v. Bloomberg, L.P., the plaintiff (name kept anonymous) alleged being subjected to sex discrimination and a hostile work environment at Bloomberg, L.P. She claimed that her direct supervisor Nicholas Ferris, engaged in a continuous pattern of sexual harassment, including rape. The lawsuit also named Mike Bloomberg, the Co-Founder, Chief Executive Officer and President of Bloomberg, L.P. as a defendant in the case. She claimed that he had fostered and encouraged a work environment with “sexist and sexually charged behavior.” However, she did not claim that Bloomberg had any personal participation related to the offending conduct. Legal Basis for the Court’s Ruling The anti-discrimination statute allows for liability when “the employer knew of the employee’s or agent’s discriminatory conduct and acquiesced in such conduct or failed to take immediate and appropriate corrective action.” It also recognizes liability when the “employer should have known of the employee’s or agent’s discriminatory conduct.” However, the point at issue in this case was that the term “employer” was not defined clearly. This fact resulted in confusion when determining who was an employer in the context of the statute. The court decided that “employer” based on...

OSHA COVID-19 Recordkeeping and Reporting Requirements

What OSHA COVID-19 Guidelines Apply to Your Business? OSHA COVID-19 recordkeeping and reporting requirements have changed, based on new guidelines released by OSHA on March 12, 2021. The Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) provides the new guidelines for: Complaints Referrals Severe illness reports These guidelines are time-limited to the current coronavirus public health crisis. Does OSHA COVID-19 Recordkeeping and Reporting Apply to Your Business? Many businesses fall under OSHA authority. Exempt businesses include: Businesses regulated by different federal statutes (for example, nuclear power and mining companies) Domestic services employees Businesses that do not engage in interstate commerce Farms where only immediate family members are employees Employers under OSHA authority have the obligation of reporting COVID-19 cases that meet all of the following requirements: As defined by the CDC, a case confirmed as COVID-19 A work-related case (contagion occurred at work) When the following criteria relate to the case: medical treatment beyond first-aid, one or more days spent away from work, restricted work or transfer to another job, death or loss of consciousness, significant illness diagnosed by a physician or licensed health professional Frequently Asked Questions About OSHA Record Reporting How do you report a work-related injury or illness that results in the employee’s death? The OSHA 300 Log contains a space for cases resulting in death. You must check mark the space in the log and report it to OSHA within eight hours. How do you record a work-related illness that results in days away from work? In the OSHA 300 Log, you must check mark in the space related to this category and...

COVID-19 Qualifies as a Disability in NYC

Disability in the Workplace COVID-19 qualifies as a disability in New York City based on the New York City Human Rights Law. Furthermore, the New York City Human Rights Law (NYCHRL) applies to owners with four or more employees. The determination of employer size includes  the owner and natural persons working as independent contractors. The Disability Definition for COVID-19 Actual or perceived infection with Covid-19 is a disability, according to the NYC Commission. Therefore, under the law, employers cannot harass or discriminate against employees with COVID-19 or with a perceived history of COVID-19. This includes employees who have contracted or are more likely to contract COVID-19 due to race, religion, national origin, disability or any other protected status. In addition to protection under the NYCHRL, the Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (reissued on March 21, 2020) also provide guidance for regulations that employers must follow. What Precautions Should Employers Take Based on the Fact that COVID-19 Qualifies as a Disability? Employers must ensure their practices and policies in response to the pandemic do not result in discrimination. Based on protected status, they cannot treat workers less well. This includes actions taken out of benevolence. For example, excluding workplace employees who are 65 or older because they are at a higher health risk if contracting COVID-19 could be a form of age discrimination. You cannot lay off such workers based on age. However, employers can make accommodations to keep workers safe. Accommodations might include: Making telework optional for all staff Staggering work schedules Adjusting workplace layout by adding barriers for social distancing Providing personal...

Paid Work Leave for COVID-19 Vaccinations—FAQs

New York State Passed a Law for Paid Time Off New York employers must allow employees paid time off to receive COVID-19 vaccinations based on a recent New York law. When did the law go into effect? The new law went into effect on March 12, 2021. Employers must provide employees with up to four hours of paid leave for each injection. When the vaccination requires two injections, employers must provide a total of eight hours paid leave. What guidelines must employers follow with the paid work leave for COVID-19 vaccinations? The law establishes guidelines for employers to follow, which include: Employees receive paid leave at their regular pay rates Employers cannot count the leave against any other leave, such as a family medical leave, vacation or sick days. A collective bargaining agreement may waive the requirements, as long as the agreement references the new law. What if your employee received the COVID-19 vaccine prior to the new law? The law does not apply retroactively for employees who received their COVID-19 vaccination injections before March 12, 2021. However, nothing in the law prohibits employers from applying the law retroactively. How long does the law last? This new law will expire on December 31, 2021. However, during this time, employers should revise their policies on paid leave based on the new law. Does the new law cover employees helping a family member or friend receiving vaccinations? No. Employees assisting a friend or relative to receive the vaccine cannot count this time off as a paid COVID-19 vaccination leave for themselves. Can you require employees to give advance notice of time...

COVID-19 Vaccinations, Employment Law and Employers’ Rights

How Should Employers Deal with COVID-19 vaccinations? COVID-19 vaccines may be something that you require of your employees, depending on the nature of your industry. It is vital that you understand your legal rights as well as your employees’ legal rights regarding this issue. The Equal Employment Opportunity Commission (EEOC) has established guidelines that can help employers understand how COVID-19 vaccinations relate to employment laws. Medical Screening and COVID-19 Vaccinations The Americans with Disability Act (ADA) prohibits employers from giving employees medical examinations, and screening questions could be considered a medical examination. Therefore, as an employer, you cannot ask your employee about medical conditions as part of screening for receiving the vaccine. However, employers can require that employees receive vaccinations to make the workplace safer. Yet some employees may have disabilities, such as potential allergic reactions, that could put them at risk for receiving the vaccine. Vaccines would not be administered to such employees. Employers can avoid medical screening by having third parties, such as doctors or pharmacists, handle the screening and vaccinations. In addition, if you offer vaccinations to employees on a voluntary basis, and the employee voluntarily agrees to answer pre-screening questions related to disability or other reasons, you are not liable. However, if an employee decided not to receive the vaccination, it would be illegal to engage in retaliation, intimidation or threats against him or her for refusing the vaccine. The Vaccine and Grounds for Job Termination A disability or a sincerely held religious belief, practice or observance may be reasons that employees choose not to receive vaccinations. Employers must make reasonable accommodations, whenever possible. If...

COVID 19 Response Employment Impacts for New York Workers and Businesses

As we all know, there is only one issue in the news right now: the novel coronavirus (COVID-19), its varied impacts upon global societies, and the increasingly extraordinary measures being taken by nations, states and local governments to minimize the adverse health consequences to vulnerable populations. If you are a New Yorker reading this article, you are no doubt seriously worried about the possibility of contracting the virus. Even for the relatively young and healthy among us, the fear of community spread to family and friends who may be elderly or immunocompromised is very real, as they are at heightened risk of serious health complications. Here in New York City, as public schools and many businesses have been closed for the foreseeable future, people are wondering how this constantly evolving situation may impact their livelihoods, and are looking for ways to survive what may be a potentially long and painful period of economic pain. This article will provide some helpful information for employees and employers looking for some relief in these difficult times. Information for Affected NYC Employees Many businesses in the service and hospitality sectors have already been ordered to close by city and state governments. Additionally, many other businesses have either been forced to shutter or have vastly reduced staffing levels due to serious decline in customers and revenues as most New Yorkers begin to shelter in place. If you have been laid off or furloughed by your employer, you should immediately apply for unemployment insurance benefits, as New York has waived the normal seven-day waiting period before filing a claim. This means that workers who lose...