Seyfarth Synopsis:  The U.S. Equal Employment Opportunity Commission (“EEOC”), the New York State Division of Human Rights (the “Division”) and the New York City Commission on Human Rights (the “Commission”) have all recently issued guidance on discrimination and harassment in light of the COVID-19 pandemic.  Employers should ensure they are paying attention to this guidance, particularly in light of the Commission flagging an uptick in complaints filed with the agency.

The EEOC, the Division, and the Commission have all issued guidance regarding protections from discrimination and harassment during the COVID-19 pandemic.  A high-level overview of this guidance is set forth below.

The EEOC Guidance:

The EEOC has provided several updates to its guidance for employers regarding discrimination and harassment under the various Federal laws amidst the COVID-19 pandemic (see our prior updates here and here).  On April 17, 2020, the EEOC further updated its Technical Assistance Questions and Answers (found here) concerning compliance with the Federal laws.  The newly issued Q&As focus on accommodations, as well as issues of discrimination and harassment, including guidance on screening employees in light of the ADA.

The Q&As now also include a question: “[a]re there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace?” The response provided is: “Yes.  An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information.  It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination.  An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.” (emphasis added).

The NY Division’s Guidance:

The Division similarly issued guidance related to COVID-19 under the New York State Human Rights Law (“NYSHRL”). The guidance makes clear that individuals may file a complaint with the Division regarding discrimination because of a “perceived connection between [the person’s] race, national origin, or disability and the novel Coronavirus.”  It also makes clear that the NYSHRL prohibits discrimination against individuals who are assumed to have been exposed to COVID-19 based on their protected characteristics, including race, national origin, and disability.  The guidance provides that these protections cover employment, housing, education, and places of public accommodation.

The guidance provides the following specific examples of prohibited conduct:

• Public places such as hotels, restaurants, transportation services, and retail stores cannot deny entry or access to goods or services based on a perception that a person’s national origin, race, or disability indicates possible exposure to the coronavirus.
• Employers cannot fire employees, send employees home, or tell employees not to come to work because the employer thinks the employee may have been exposed to the coronavirus based solely on the employee’s race, national origin, or disability. It is an unlawful discriminatory practice to terminate an employee or prevent them from working based on speculation that the employee’s race, national origin, or disability indicates possible exposure to the coronavirus.
• If an employer terminates an employee or sends an employee home based on what is later found to be a discriminatory policy, the employer could be responsible for missed wages.
• If an employee is wearing a face mask as a precaution, the employee is still protected against discrimination. The NYSHRL prohibits discrimination based on a perceived connection between race, national origin, or disability and possible exposure to coronavirus. Wearing a face mask does not change this.

Finally, the guidance instructs individuals how to report harassment and/or discrimination.

The NYC Commission’s Guidance:

On April 19, 2020, the Commission announced the formation of a COVID-19 Response Team to handle reports of harassment and discrimination related to the outbreak. The announcement included reference to the fact that since February, the Commission has recorded 248 reports of harassment and discrimination related to COVID-19, over 40% of which identify incidents of anti-Asian harassment or discrimination.

The Commission also issued guidance on harassment and discrimination under the New York City Human Rights Law (“NYCHRL”) on the basis of race, national origin, age, and disability (including having COVID-10 or another serious illness).

The guidance includes a fact sheet on Hate and Bias incidents related to COVID-19.  The fact sheet makes clear that hate or discrimination on the basis of protected characteristics is not tolerated. It also informs individuals how to report harassment and discrimination.

The guidance also includes a section on employment protections. The employment protections guidance makes clear that employers cannot harass or discriminate against employees because of “fears or stigma around COVID-19, including on the basis of actual or perceived race, national origin, age, disability, or other protected class.”  It adds that in many cases, infection with COVID-19 qualifies as a disability under the NYCHRL. It also provides that treating an employee less well because they are perceived to have COVID-19 violates the NYCHRL.

Importantly, the employment protections guidance clarifies that the Commission is adopting the EEOC’s guidance, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” and that compliance with the EEOC guidance will generally satisfy employers’ obligations with respect to disability protections under the NYCHRL as they relate to COVID-19. However, the Commission added a section on “[s]upplemental information and key things to note regarding the Commission’s application of the EEOC guidance” and included the following:

1. Scope of adoption: Notes that the Commission’s adoption of EEOC guidance is not an adoption of Federal disability law and it does not “limit the New York City Human Rights Law beyond the scope of what is covered within the EEOC guidance.”  It further directs employers to additional guidance issued by the Commission on discrimination on the basis of disability and pregnancy.
2. General prohibitions against discrimination: Reminds employers that discrimination remains prohibited under the law and that all policies and practices (including those implemented in response to COVID-19) must not be discriminatory.
3. Reasonable accommodations: Reminds employers that they have a duty to provide reasonable accommodations to their workers. It adds that employers should “accommodate people who have contracted, are suspected of having been exposed to, or are recovering from COVID-19, unless doing so poses an undue hardship” and that reasonable accommodations may be required for “employees with underlying conditions for whom exposure to COVID-19 may pose a particular risk of complication or who are pregnant by, for example, allowing them to telework, change their schedules, or provide certain personal protective equipment.”
4. Medical Notes: States that requests for medical notes related to COVID-19 may burden the health care system, thus “employers should not request medical notes to confirm disability related to COVID-19 … or request medical notes from employees seeking accommodations related to pregnancy, childbirth, or related medical condition.” (Note: the Commission’s guidance with respect to medical notes runs counter to the best practices of many employers and may conflict with the rights of employers under the law. In this regard, employers should consult with counsel when formulating what their post pandemic policies will be regarding medical notes and return to work certifications from employees).

The Commission’s guidance also notes that, for claims that expire between March 20, 2020 and May 6, 2020, the deadline to file a complaint under the NYCHRL is extended to May 7, 2020 pursuant to Executive Order.  It also flags that, due to the interruption caused by COVID-19, the Commission is postponing issuing decisions on appeals in cases where the complaint was dismissed by the law Enforcement Bureau for administrative cause (i.e., where applicable under Section 8-502 of the NYCHRL, the time for filing claims in state court will not begin to run until a decision on the appeal is issued).

Employer Takeaways:

As employers grapple with issues surrounding essential workers and consider return-to-work plans, it is important that they keep the discrimination / harassment guidance in mind and ensure compliance.  To stay up-to-date on COVID-19 developments, click here to sign up for our daily digest.