COVID-19 & Employment Protections

Based on current available information, the Commission considers actual or perceived infection with COVID-19 to be protected as a disability under the New York City Human Rights Law (NYCHRL). Employers must not discriminate against or harass employees with actual or perceived infection with COVID-19, or based on an actual or perceived history of such infection. It is also illegal for an employer to harass or discriminate against an employee based on the presumption that they have contracted or are more likely to contract COVID-19 due to actual or perceived race, religion, national origin, disability, or another protected status.

In response to the current public health crisis posed by COVID-19, the Commission has adopted the Equal Employment Opportunity Commission's guidance, "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act," originally published on October 9, 2009, and reissued on March 21, 2020. In general, compliance with the EEOC guidance will satisfy employers' obligations with respect to disability protections under the NYCHRL, as they relate to COVID-19. The Commission also adopts specific portions of the EEOC’s guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws," as noted below.

Below, please find supplemental information and key things to note regarding the Commission's application of the EEOC guidance.

Last updated: July 2, 2021

Contents

Scope of adoption: The Commission's adoption of EEOC guidance to address the current public health crisis does not constitute a wholesale adoption of federal anti-discrimination law, nor does it limit the NYCHRL beyond the scope of what is covered within the EEOC guidance.

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Employer size [added 1/14/2021]: An employer is covered by the NYCHRL if it has four or more employees, which includes the owner and natural persons working as independent contractors. Employers of all sizes are covered with respect to claims of gender-based harassment.

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General prohibitions against discrimination: Even in the midst of a pandemic, protections against discrimination under the NYCHRL remain in effect. Employers must be sure that their policies and practices, including those implemented in response to COVID-19, do not discriminate against or treat workers less well based on their protected status, including race, religion, national origin, citizenship, immigration status, and disability, among others. Treating employees less well includes actions that employers may take out of benevolence, such as excluding from the workplace employees who are at a higher health risk if they contract COVID-19, for example, if they are over age 65. Employers may take reasonable steps to protect the health and safety of their staff and clients, and should follow local, state, and federal public health orders and recommendations. Such steps may include making telework optional for all staff, creating staggered work schedules, changing the workplace layout by creating additional barriers to facilitate social distancing, and providing personal protective equipment.

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Reasonable accommodations [updated 1/14/2021]: Employers have an ongoing duty to provide employees with accommodations based on pregnancy, religion, or disability (including disabilities related to COVID-19), unless doing so poses an undue hardship or, in the case of a request for accommodation based on disability, where the person presents a direct threat that cannot be adequately mitigated by a reasonable accommodation. With respect to disabilities the obligation to provide a reasonable accommodation extends to conditions directly related to COVID-19 and underlying conditions for which exposure to COVID-19 may pose a particular risk of complication, which the NYC Department of Health has identified here. Employers are not legally required to provide a reasonable accommodation to employees based on age alone; however, if an employee expresses concern regarding risk of severe infection of COVID-19 because of their age, employers should remind them of their policies regarding reasonable accommodations for disabilities.

Examples of reasonable accommodations include allowing an employee to work remotely, modifying an employee's work duties, changing their schedule, and/or providing certain personal protective equipment. Employers must also implement business changes that are responsive to COVID-19 in a manner that allows for reasonable accommodations based on an employee's disability, religion, or pregnancy, unless doing so would pose an undue hardship. For example, to reasonably accommodate an employee with a hearing disability, an employer could provide all staff with clear face coverings that enable the employee to read their coworkers' lips. Retaliating against an employee because they requested an accommodation violates the NYCHRL.

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Undue hardship under the NYCHRL [added 1/14/2021]: With respect to accommodations based on disability and pregnancy, the relevant factors for assessing undue hardship under the NYCHRL include: the nature and cost of the accommodation; the overall financial resources of the facility or the facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees, the number, type, and location of its facilities; and the type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity. N.Y.C. Admin. Code § 8-102.

With respect to religion, the NYCHRL defines an undue hardship as “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).” Factors to be considered include “(i) The identifiable cost of the accommodation, including the costs of loss of productivity and of retaining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer; (ii) The number of individuals who will need the particular accommodation to a sincerely held religious observance or practice; and (iii) For an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.” A religious accommodation is deemed to pose an undue hardship “if it will result in the inability of an employee who is seeking a religious accommodation to perform the essential functions of the position.” N.Y.C. Admin. Code § 8-107(3)(b).

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Important distinction from the ADA concerning the cooperative dialogue process: Under the NYCHRL, employers are required to engage in a cooperative dialogue with an employee when they know or have reason to know that the employee may require a reasonable accommodation. This means that, in contrast with guidance from the EEOC in question G.4 of What You Should Know About the ADA, the Rehabilitation Act and the Coronavirus, if an employer knows that an employee has a medical condition that the employer is aware might place them at "higher risk for severe illness" if they get COVID-19, the NYCHRL requires the employer to engage the employee in a cooperative dialogue about a potential accommodation, even if the employee has not requested a reasonable accommodation.

All employers covered under the NYCHRL are required to engage in a cooperative dialogue with employees where the employer has notice that the employee may need a reasonable accommodation. Bearing in mind that employers' obligation to engage employees in a cooperative dialogue about potential accommodations related to COVID-19 may extend to a large number of people, employers may satisfy their obligation to initiate the cooperative dialogue by reminding all staff of the employer's policies regarding reasonable accommodations and the process for applying for such accommodations. For more information about the cooperative dialogue process under the NYCHRL, see the Commission's Legal Enforcement Guidance on Discrimination on the Basis of Disability.

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Medical notes: During the current pandemic, it may be impracticable for employees to obtain documentation from a healthcare provider confirming the need for a disability-related or pregnancy-related accommodation. To the extent employers require such documentation in order to grant reasonable accommodations, the Commission recommends waiving those requirements until such time as the employee can reasonably obtain documentation. This is consistent with employers' obligation to engage in good faith in the cooperative dialogue process. At the same time, employees have a similar obligation to engage in good faith in the cooperative dialogue process, including by undertaking reasonable efforts to provide their employer with necessary documentation in support of a request for reasonable accommodation. Employers are encouraged to adopt a flexible approach to handling requests for reasonable accommodation and confirming the nature of an employee's need for such accommodation.

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Employees working remotely from outside New York City: During the period when employees of New York City-based employers are working remotely, they may be physically located outside of New York City. New York City-based employers must comply with the NYCHRL regardless of where their employees are temporarily located during the pandemic.

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Returning to work: Consistent with employers' need to take reasonable steps to protect the health and safety of their businesses, employers may require employees to provide evidence of their ability to safely return to the workplace after recovering from COVID-19 and to confirm that they are not contagious. Employers are permitted to mandate certain safety precautions, such as vaccination requirements, distancing measures, and mask requirements. If an employee is unable to comply with a safety precaution due to a disability, pregnancy, or religion, they may request a reasonable accommodation. Employers must determine if an exception or alteration of a safety precaution poses an undue hardship or, with respect to a request for a disability accommodation, would pose a direct threat. If so, an employer may deny the accommodation.

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Requests to continue working remotely [updated 1/14/2021]: As businesses seek to bring their workforces back on-site, some employees may seek to continue working remotely for a variety of reasons:

A generalized fear for their health and safety: Employers are not required by the NYCHRL to provide accommodations based on an employee's generalized fears of catching COVID-19. Other laws may, however, limit employers' ability to force employees to return to work in unsafe conditions, including because of COVID-19.

Risks of complication related to an underlying disability: An employee is entitled to reasonable accommodations related to a disability, and that remains true when the disability puts them at increased risk of complications from COVID-19. The underlying conditions that public health authorities have thus far identified as increasing complications from COVID-19 generally qualify as disabilities under the NYCHRL. When an employee seeks an accommodation based on a disability, an employer is required to engage with the employee in a cooperative dialogue about the person's accommodation needs and potential accommodations that may address those needs. An employer must provide a reasonable accommodation unless doing so would pose an undue hardship or present a direct threat to workplace health or safety. For more information about the cooperative dialogue process and reasonable accommodations, see the Commission's Disability Legal Enforcement Guidance.

Risks of complication related to a pregnancy: An employee is entitled to reasonable accommodations related to pregnancy, childbirth, or a related medical condition, including accommodations to protect against increased risk of complications from COVID-19. When an employee seeks an accommodation based on pregnancy, childbirth, or a related medical condition, an employer is required to engage with the employee in a cooperative dialogue about the person's accommodation needs and potential accommodations that may address those needs. An employer must provide a reasonable accommodation unless doing so would pose an undue hardship. For more information about pregnancy accommodations, see the Commission's Pregnancy Legal Enforcement Guidance.

Risks of complication related to their age: Under the NYCHRL, employers are not required to provide reasonable accommodations to employees based solely on age. However, employers are required to provide reasonable accommodations based on disability, which is broadly defined under the NYCHRL to include many physical impairments that are more common among older adults, such as serious heart conditions. For that reason, when an employee expresses concerns about returning to work based on their age, employers are encouraged to remind workers of the employer's general policy concerning reasonable accommodations and the process for requesting one. For more information about the cooperative dialogue process and reasonable accommodations, see the Commission's Disability Legal Enforcement Guidance. Please also see the Commission's COVID-19 Supplement on Age Discrimination for additional guidance.

Risks to a vulnerable family member of the employee: Employers are not required by the NYCHRL to provide accommodations based on an employee's status as a caregiver or because of their relationship to or association with someone with protected status, such as a disability. However, discrimination based on an employee's status as a caregiver is unlawful, and employers must ensure that they are not discriminating against caregivers. For example, it is illegal for an employer to fire an employee based on the assumption that the employee would be less available to work during the pandemic because they have a spouse with pre-existing conditions for whom they provide care. Employers also must not discriminate against caregivers by denying requests for accommodations if they provide similar accommodations to other employees beyond what is legally required, by, for example, denying a request to shift one’s schedule to accommodate childcare needs but approving a similar request to accommodate one’s graduate school schedule.

An inability to secure childcare: Employers are not required by the NYCHRL to provide accommodations based on an employee's status as a parent or caregiver. However, discrimination based on an employee's status as a caregiver is unlawful, and employers must ensure that they are not discriminating against caregivers if they are providing accommodations to other employees beyond what is legally required. For example, it would be illegal for an employer to provide an employee with minor schedule adjustments for attending grad school and not for caregiving responsibilities. In addition, other laws may govern parents' and caregivers' ability to stay home to care for children and may protect against retaliation for choosing to do so.

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Testing and assessing the risk of a direct threat [updated 1/14/2021]: As the EEOC has noted, based on guidance from the CDC and public health authorities, the COVID-19 pandemic qualifies as a direct threat to health in the workplace and employers are permitted to undertake medical examinations, such as a test to detect presence of the COVID-19 virus or temperature testing, to confirm whether a particular employee poses a direct threat to workplace health and safety due to infection, even though such examinations would ordinarily be prohibited by disability protections under the NYCHRL, in the absence of the COVID-19 pandemic.

Employers are cautioned, however, to ensure that testing is performed consistent with current medical knowledge and the best available objective evidence, including by selecting tests with reasonably confirmed rates of accuracy and by strictly following test manufacturers' guidelines and instructions for use. Tests must not be administered in a discriminatory manner, for example, by testing employees based on their age, national origin, or other protected status. If an employee requests an alternative method of screening due to a medical condition, employers should treat the request as one for a reasonable accommodation. A determination that an employee poses a direct threat may not be based on speculative or unfounded fears, unsupported by current medical knowledge or objective evidence. While tests for infection with COVID-19 have become more available in New York City, employers should be flexible with testing policies to account for delays and difficulties that employees may have in obtaining prompt results.

It is important to bear in mind that certain medical tests, standing alone, may not provide objectively reliable information about the health risks posed by an individual employee. For that reason, if employers are utilizing a workplace-wide test, like temperature testing of all employees, they should also allow for a more individualized assessment of an employee's condition. For example, if an initial temperature test indicates that an employee may have an elevated temperature, the employer could ask questions to rule out causes that would pose no risk in the workplace, such as recent exercise or a recent meal, and re-administer the test or administer an alternative test (such as using another type of thermometer or performing a different test for loss of smell) to confirm results. Moreover, employers should also take into account additional information that an employee voluntarily chooses to provide related to the direct threat assessment, including evidence that may rebut or provide context for the results of the employer's test. Employers should also note that many symptoms of COVID-19 that have been identified by public health authorities do not present in all cases and, conversely, that the same symptoms may present in people who are not infected with COVID-19. Please consult the NYC Department of Health's website for updates on COVID-19 testing and symptoms.

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Vaccinations [added 7/2/2021]: The Commission adopts the EEOC’s vaccination guidance provided in questions K.1 through K.13 of What You Should Know About the ADA, the Rehabilitation Act, and the Coronavirus with one exception. The standard for assessing undue hardship under the NYCHRL differs from that under federal law when considering requests for reasonable accommodation. For more information about the undue hardship standards under the NYCHRL, see above.

Employers that administer vaccinations to their employees are permitted to prioritize vaccinations for workers based on certain protected statuses, such as, for example, age or disability status, so long as it is consistent with recommendations of public health authorities. However, if an employer decides to administer vaccinations to people outside of the prioritization categories recommended by public health authorities—because, for example, there is surplus vaccine available for the broader workforce that would otherwise go unused—it must do so in a non-discriminatory manner.

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Educational resources from the Commission: Please consult the Commission's Legal Enforcement Guidance on Discrimination on the Basis of Disability and Legal Enforcement Guidance on Discrimination on the Basis of Pregnancy for additional information about employees' rights to reasonable accommodations and to be free from discrimination. For additional information specific to age-related discrimination in employment, see the Commission's Legal Enforcement Guidance on Employment Discrimination on the Basis of Age COVID-19 Supplement

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