By December 31, 2020, all businesses with employees in Illinois must have conducted sexual harassment training for managers and employees. As yet, no extension or similar relief has been granted due to COVID-19 so the requirement remains in place. How many businesses will meet the training deadline in the new law?

In addition to a rise in claims, the #MeToo and #TimesUp movements sparked a wave of new state laws mandating sexual harassment prevention training. Illinois is the most recent and the last of these laws to take effect. Requirements in California, Connecticut, Delaware, D.C., Maine, New York, and Washington State had already been on the books.

Despite the employment disruption delivered by COVID-19, only one of these states - Connecticut - extended the time to comply with the training mandate. What can employers do to catch up?

State Laws - What Matters

Sexual harassment prevention training is not a new concept. Well before #MeToo, several states - California, Connecticut, and Maine - had required manager training. But then came the fallout from Harvey Weinstein and the map changed.

1. A few states enacted training mandates for the first time in 2018-19. New York (state and city), Delaware, and Illinois passed laws that apply to a broad range of businesses. The New York and Illinois laws, for example, apply to businesses with even one employee.
2. The states with existing training requirements significantly expanded their reach. For example, California lowered the employer size threshold from 50 to only five employees to trigger compliance.
3. A couple of jurisdictions enacted training laws targeting specific types of businesses seen as more vulnerable to sexual harassment in the workplace, such as the Washington State law applicable to retailers and hotels, and the District of Columbia law for bars and restaurants. Even the comprehensive Illinois law requires additional training content for bars and restaurants.

Another critical trend in most of these laws breaks from past approaches - now employees, not only managers, must receive training. As a result, employees will be more knowledgeable about behaviors that constitute harassment, along with managers learning about what behaviors to avoid.

Finding Training - Where to Look

No two state training laws are identical as to content, length, frequency, audience, employer size, and other elements. A few of the states have developed training programs for businesses, usually without record-keeping features, and businesses can access them at state websites. Private training services, either in person or online, have always been available in the marketplace for a fee.

Another option is already available to many businesses - using the online, on-demand training accessible with an Employment Practices Liability Insurance (EPLI) policy. Most EPLI carriers offer a website where individual state training modules can be found, along with more general sessions to serve in other states. Just visit the EPLI website provided by these insurers and you can start taking the required training.

These EPLI-affiliated training websites deliver two benefits over the other options: they track individual compliance so employers can prove compliance, and they are free of charge. The key is having an EPLI policy from an insurer providing these educational services. If you already buy EPLI, check that this valuable service is available. For businesses that have not purchased EPLI protection, it might be worth your while to discuss it with your agent. The cost of private training services might well exceed the cost of an EPLI policy. Your insurance agent can advise if you have EPLI already, and how to get it if you don’t.

The training deadline is fast approaching for Illinois businesses and has already passed for other states. Are employers ready or will it be #TimesUp?

Endnotes

1. For a good review of the Illinois training law and status, see https://katten.com/upcoming-reporting-and-training-deadlines-for-illinois-employers.
2. For a general discussion of these training laws, see https://www.mhlnews.com/labor-management/article/21128010/new-sexual-harassment-laws-promote-training; https://www.americanbar.org/groups/litigation/publications/litigation-news/featured-articles/2020/new-state-laws-expand-workplace-protections-sexual-harassment-victims.
3. The training requirements discussed in this blog apply to private businesses. A larger number of states have enacted training mandates for state government employers.