Category: Employment Law

Reviewing Your New York Anti-Harassment Policies

Reviewing Your New York Anti-Harassment Policies (Webinar Recap)

On August 24, 2023, I presented a complimentary webinar entitled “Reviewing Your New York Anti-Harassment Policies”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • Sexual Harassment Policies
  • Other Protected Characteristics
  • Best Practices
  • Legal Impact
  • Training

and much more!

All New York employers must have a written sexual harassment prevention policy. The State has recently updated its model policy, and employers should be aware of the suggested changes. You should also consider how to address other forms of harassment in your employee handbook or other policy materials. Given relatively low bars for asserting unlawful harassment in New York, it is critical that employers continue to monitor their efforts in this area.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Reviewing Your New York Anti-Harassment Policies”

New York State has updated its model sexual harassment prevention policy. While employers are not required to adopt the model policy, you must meet minimum guidelines established by the State. Unfortunately, it’s not so clear exactly how to do that. In this webinar, we discuss some strategies and best practices for compliance depending on your circumstances.

Of course, employees have legal rights to be free from harassment based on other characteristics as well. What do your current policies say about racial harassment, age-based harassment, and harassment against individuals with disabilities? Make sure your policies make sense together and are up-to-date in light of periodic changes in applicable employment discrimination laws.

The webinar also includes reminders about mandatory sexual harassment training and ideas on preventing harassment, which is the only way to genuinely reduce the risk of legal liability.

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Visual Disabilities - Person with visual impairment sitting on orange sofa in office setting with white cane

EEOC Issues Guidance on Visual Disabilities in the Workplace

As an employer, it’s crucial to understand the legal obligations and best practices for accommodating employees with disabilities. On July 26, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released a new technical assistance document specifically addressing visual disabilities in the workplace. While the EEOC focuses on the Americans with Disabilities Act (ADA), state or local laws may also be relevant to this topic.

The ADA

The ADA is a federal law that prohibits discrimination against qualified individuals with disabilities. Under the ADA, individuals with disabilities include those who have a physical or mental impairment that substantially limits one or more major life activities, have a record or history of such an impairment, or are subject to an adverse action because of an actual or perceived physical or mental impairment.

The ADA applies to private employers with 15 or more employees and all state and local government employers.

Visual Disabilities

The EEOC guidance uses the term “visual disabilities” to refer to disabilities related to an individual’s vision. It uses the term “vision impairments” to encompass various vision-related conditions such as blindness, low vision, limited visual fields, photosensitivity, color vision deficiencies, or night blindness. A vision impairment constitutes a visual disability if it meets one of the three definitions of disability: actual, record of, or regarded as.

Not everyone who wears glasses or contact lenses qualifies as an individual with a disability under the ADA. As the guidance explains, “An individual who uses ordinary eyeglasses or contact lenses that are intended to fully correct their vision typically will not be covered under the ADA as an individual with an ‘actual’ or a ‘record of’ a visual disability.”

Prevalence of Visual Disabilities

According to the U.S. Centers for Disease Control and Prevention (CDC), approximately 18.4% of all U.S. adults are blind or have difficulty seeing even when wearing corrective lenses. Vision impairments can start or occur throughout one’s lifetime and can be caused by various factors, including eye diseases, eye injuries, burns, or surgical complications.

Employer Obligations and Reasonable Accommodations

Many individuals with vision impairments can successfully and safely perform their jobs with or without reasonable accommodation. Under the ADA, employers should not deny employment opportunities to these individuals based on stereotypes or incorrect assumptions. The document provides guidance on when an employer may ask an applicant or employee questions about a vision impairment, what types of reasonable accommodations may be needed, and how to handle safety concerns.

Ultimately, if an employee’s visual disability cannot be accommodated in such a way as to prevent unreasonable safety risks, then an employer is not necessarily required to continue their employment.

Protecting Employees from Harassment

The document also addresses the importance of ensuring that no employee is harassed because of a visual disability. Employers have a responsibility to create a safe and inclusive work environment for all employees, including those with visual disabilities.

Confidentiality

The ADA requires employers to keep medical information about applicants and employees confidential. However, some internal disclosure regarding vision impairments is permissible for legitimate business purposes.

Retaliation

Like most employment discrimination laws, the ADA prohibits retaliation against individuals seeking its protections. Accordingly, employers must not treat employees negatively for any activities related to their rights under the law.

Read More About Visual Disabilities

The EEOC guidance goes into substantial detail regarding issues related to individuals with visual disabilities and impairments. Even if you are not currently addressing concerns regarding such an employee, it is worth reviewing the new guidance as background. If you do face a specific employment issue regarding someone’s vision, the guidance provides a good starting point in determining the legal parameters. However, as mentioned, additional laws may also apply, so it is best to consult with experienced labor and employment counsel as well.

Volunteer Restrictions

Volunteer Restrictions for New York Non-Profits

As an employer, can your organization also have people providing services for no compensation? The short answer is yes, but only if certain circumstances apply. And the rules for interns and volunteers depend on what type of organization you are. This article addresses the volunteer restrictions that apply to non-profit entities in New York. We will separately address related concerns (i.e., unpaid interns) in for-profit businesses.

Non-Profit Volunteers

Generally speaking, anyone who agrees to perform services without getting paid can be referred to as a volunteer. Legally, there are more specific criteria that may apply, and some further distinctions to be made.

New York not-for-profit organizations often have both paid employees and unpaid volunteers who collectively perform an array of roles to pursue the organization’s mission and objectives. For the most part, this is acceptable. But there are legal lines that need to be drawn.

Note that we are talking about duly established non-profit entities that operate for charitable, educational, or religious purposes. Other types of entities usually may not use unpaid volunteers.

Volunteer Restrictions

Under state and federal minimum wage and overtime laws, volunteers could be deemed employees (and entitled to compensation) if certain conditions aren’t satisfied.

In particular, as described by the New York Department of Labor, unpaid volunteers may not:

  • Replace or augment paid staff to do the work of paid staff
  • Do anything but tasks traditionally reserved for volunteers
  • Be required to work certain hours
  • Be required to perform duties involuntarily
  • Be under any contract to hire, express or implied, by any other person or business
  • Be paid for their services (except reimbursement for expenses)

Employees Who Volunteer

As a partial limitation on the above criteria, it is possible for employees of a non-profit also to volunteer some of their time for the organization. However, they cannot agree to forego compensation for their regular job. Instead, they can only volunteer (without pay) to do something completely different from what they do as employees. For example, if an organization employs an events coordinator, they presumably couldn’t allow that employee to oversee a fundraising event on a volunteer basis. But a non-profit organization’s receptionist, accountant, or delivery driver may be free to volunteer to run such an event without pay.

Review Your Volunteer Arrangements

Missteps in managing volunteer roles can lead to legal complications under state and federal minimum wage and overtime laws. Therefore, non-profits must establish clear volunteer policies and guidelines to maintain a beneficial and legal relationship between the organization and its dedicated volunteers.

 

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