Employers’ Best Practices to Avoid NYC Human Rights Violations While Responding to COVID-19

ArentFox Schiff

Arent Fox

As New York City businesses prepare for New York State Governor Andrew Cuomo to lift the New York State Pause Order and reopen businesses in the five boroughs, on May 5, 2020, the New York City Commission on Human Rights (Commission) issued guidance highlighting best practices employers should follow to avoid committing civil rights violations under the New York City Human Rights Law in the wake of COVID-19.

The Commission is primarily responsible for enforcing New York City Human Rights Law, Title 8 of the Administrative Code of the City of New York (NYCHRL), which prohibits discrimination in employment, housing, and public accommodations based on race, color, religion/creed, age, national origin, alienage or citizenship status, gender (including sexual harassment), gender identity, sexual orientation, disability, pregnancy, marital status, or partnership status (protected status).

Most notably, the Commission’s guidance articulates the Commission’s position that COVID-19 is a disability protected by the NYCHRL. The guidance also highlights that employers may run afoul of the NYCHRL if they harass and/or discriminate against individuals in the employment, housing, and public accommodation context based on an individual’s COVID-19 actual or perceived infection status, or if they fail to provide reasonable accommodations to those with COVID-19. The guidance also covers procedural concerns with cases pending before the Commission.

All businesses should take note of the most noteworthy recommendations in the Commission’s guidance.

Changes to Agency Operations in the Wake of COVID-19

The Commission has extended the deadline to file claims with the Commission given the disruption caused by COVID-19. Any claims set to expire between March 20, 2020 to May 14, 2020 needed to be filed as of May 15, 2020.

Deadlines in ongoing cases have also been extended. Complainants and employers should confirm deadlines in case investigations with the agent processing the matter.

Finally, the Commission will postpone issuing decisions on appeals in cases that have been dismissed for administrative cause or a lack of probable cause.

Employment Practice Considerations related to COVID-19

Harassment and Discrimination

A worker’s actual or perceived infection of COVID-19 is a disability protected under the NYCHRL. As a result, an employer may not harass or discriminate against its workers because of fears or stigma around the worker’s COVID-19 infection status, or on the basis of any other protected status.

As employers exercise their ability to take reasonable steps to protect the health and safety of their workforce and customers, consistent with local, state and federal public health orders and guidelines, employers should be sure that any of the policies or practices they implement in response to COVID-19 comport with their responsibility not to harass or discriminate against workers based on their COVID-19 infection status or any other protected status.

Reasonable Accommodation

Rather, if requested employers are required to provide reasonable accommodations to employees who are pregnant, or have a disability, including those infected with COVID-19, unless doing so would pose an undue hardship on the business. The Commission adopted the pandemic preparedness guidance concerning the workplace and the American Disabilities Act, which was reissued by the Equal Employment Opportunity Commission on March 19, 2020. For an extensive explanation of the EEOC guidance, click here and here. An employer’s compliance with the EEOC’s guidance will satisfy its obligation to provide reasonable accommodations to employees with COVID-19 disabilities under the NYCHRL.

According to the Commission, reasonable accommodation in the employment context may involve allowing a worker who is pregnant, has COVID-19, or some other disability, to telework, work a modified work schedule, or wear special personal protective equipment.

The Commission also notes that while medical notes are often used to substantiate a worker’s claim of a disability and reasonable accommodation, employers should waive any medical note requirements until such time as the worker can reasonably obtain documentation.

Returning to Work and COVID-19 Testing

The NYCHRL has also adopted the EEOC guidance on COVID-19 testing prior to employees returning to work. Principally, under the NYCHRL, employers may undertake medical testing, including temperature testing, to confirm whether a particular worker may pose a direct threat to the workplace due to a COVID-19 infection. Employers may also require employees to provide evidence of their ability to safely return to the workplace after recovering from a COVID-19 infection, and demonstrate they are no longer contagious.

Housing Considerations related to COVID-19

Similarly, in the area of housing, housing providers must guard against harassment and discrimination against residents based on a COVID-19 infection and must provide reasonable accommodations to those residents infected with COVID-19, as well as other residents who have protected status, such as the pregnant, the elderly, or those suffering from disabilities other than COVID-19.

Harassment and Discrimination

A resident’s actual or perceived infection of COVID-19 is a disability protected under the NYCHRL. Therefore, a housing provider may not harass or discriminate against residents, kick them out, or ask them to leave their residence because of fears associated with the resident’s infection status or any other protected status. Housing providers are also prevented from charging a resident additional fees related to cleaning or disinfecting the building. Should a housing provider learn of a resident’s COVID-19 infection, it should keep the information confidential.

Reasonable Accommodation

Moreover, while housing providers may implement policies and procedures to combat the spread of COVID-19, and ensure the health and safety of residents, housing providers have a duty to provide reasonable accommodations to residents with protected status, including those who are pregnant, elderly, or have disabilities, including COVID-19, or underlying conditions which pose a particular risk of complication if exposed to COVID-19.

The duty to provide reasonable accommodations may be excused only where providing the accommodation would pose an undue hardship to the housing provider. Should a resident request reasonable accommodation, housing providers should maintain ongoing conversations with the resident to determine what appropriate accommodations may exist.

For example, while a housing provider may maintain a policy limiting resident visitors and deliveries to reduce the potential transmission of COVID-19, it may make a reasonable accommodation permitting the pregnant, elderly, or those infected with COVID-19 to have visitors who will assist the resident with basic needs.

Public Accommodations Considerations related to COVID-19

Harassment and Discrimination

Under the NYCHRL, businesses that invite the public onto its premises may not kick out, refuse to serve, or otherwise treat patrons less well compared to others because of fears or stigma associated with COVID-19, or any other protected status.

In addition, while business owners have the responsibility to protect the health and safety of their workforce, workplace and patrons during the COVID-19 pandemic, and may adopt and implement policies like requiring patrons to wear facial coverings and maintain social distance while on their premises, business owners must not implement policies which discriminate against or treat patrons less well based on their protected status. Instead, when requested, business owners must provide patrons with reasonable accommodations that do not pose an undue hardship.

Reasonable Accommodations

If a patron who is pregnant or has a disability makes a request for a reasonable accommodation, business owners are permitted to conduct a limited inquiry to understand the patron’s need based on their protected status but should avoid seeking proof of the protected status. After its inquiry, the business owner should provide appropriate accommodation.

For instance, to accommodate a patron whose disability makes it difficult to stand for a long time, the business owner may allow the patron to enter the business without waiting in line or reserve certain business hours for the patron and other vulnerable populations to shop. To accommodate a patron with a COVID-19 disability, a business owner may allow the patron to place orders over the phone and facilitate a curbside pick-up or delivery for the patron.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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