The COVID-19 pandemic forced many employers to make difficult operational and personnel decisions to ensure the longevity of their business. Some businesses that were ordered to close may have been able to continue paying their employees, but many had to turn to layoffs or furloughs in order to survive.
Even essential businesses that have remained open over the last few months may have imposed furloughs or layoffs in response to a downturn in a business.
Now, with some exceptions, many businesses have reopened their doors. Over the last few weeks, employers have refocused their attention on designing and implementing Return to Work plans to create safe and productive work environments for employees. While these plans are rightly at the forefront of employers’ current concerns, other personnel issues (such as meeting training requirements) should not be forgotten.
For example, all New York State employers must ensure their employees complete sexual harassment prevention training, and the pandemic has not changed this requirement. All employees must be trained on an annual basis, whether that is based upon the calendar year, the anniversary of an employee’s start date, or any other date an employer chooses, and all new employees must be trained “as soon as possible” after hire. Tracking compliance with this training requirement could be complicated by an employer’s staffing changes necessitated by the pandemic.
If an employee completed a training earlier in the year, prior to the business interruptions of the last few months, and then was laid off and rehired by the same employer, the state allows the employer to consider the training requirement satisfied even though the employee is technically a new hire and would normally need to be trained as soon as possible after hire. That is, if the employer could verify that the training was completed by the employee earlier in the year.
If an employee completed their training earlier in the year and was laid off and hired by a different employer, this same rule can apply. The new employer can deem the training satisfied if it can verify that their new employee completed state-compliant training with their previous employer earlier in the same year.
If an employee did not complete the training earlier in the year and is laid off and rehired, whether by a new employer or their previous employer, the employee should complete the training as soon as possible after hire. However, if an employee is furloughed and recalled to work, their employer can likely schedule the training at any time, as long as it is completed with the year. This is because a furloughed employee that has returned to work is not a new employee.
With many businesses continuing to allow their employees to work remotely, and with social distancing continuing to remain important, employers should strongly consider providing training virtually. The Harter Secrest & Emery Labor and Employment Law team provides quarterly virtual sexual harassment prevention trainings that can be used to meet the state requirement (and the training requirements for New York City employers with more than 15 employees). If you are interested in providing this training to your employees from the safety of their own computers, you can register here. The next training is scheduled for July 7, 2020 at 11:00 am.