COVID-19 & Public Accommodations 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). A business must not discriminate against or harass customers because of actual or perceived infection with COVID-19, or based on an actual or perceived history of such infection. It is also illegal for a business to harass or discriminate against customers based on the presumption that they have contracted or are more likely to contract COVID-19 due to actual or perceived race, national origin, disability, or another protected status.

As discussed in greater detail below, a business may exclude customers who show symptoms of being infected with COVID-19 when the business reasonably believes they pose a direct threat to the health of staff or other customers and if the threat cannot be adequately mitigated by a reasonable accommodation. Businesses are prohibited, however, from excluding customers such as older individuals or individuals with disabilities who do not pose a direct threat, even if the business perceives those people may be at greater risk of harm from COVID-19 than other customers. Business owners may enforce requirements that customers wear face coverings and maintain social distance while on their premises, subject to the requirements of the NYCHRL that reasonable accommodations be made for members of protected groups, as described below.

Last updated: January 14, 2021

Contents

• General prohibitions against discrimination
• Testing and assessing the risk of a direct threat
• Reasonable accommodations
• Special guidance for essential retail services

General prohibitions against discrimination: Even in the midst of a pandemic, protections against discrimination under the NYCHRL remain in effect. Providers of public accommodations must be sure that their policies and practices, including those implemented in response to COVID-19, do not discriminate against or treat patrons less well based on their protected status, including race, national origin, citizenship, immigration status, and disability, among others. Providers of public accommodation may take reasonable steps to protect the health and safety of their staff and customers, and should follow local, state, and federal public health orders and recommendations.

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Testing and assessing the risk of a direct threat: Based on guidance from the CDC and local public health authorities, the COVID-19 pandemic qualifies as a direct threat and, for that reason, providers of public accommodation may implement certain screening tests, such as temperature testing, to reduce the risk of a direct threat to health and safety from customers who may be infected with coronavirus, even though such tests would ordinarily be prohibited in the absence of the COVID-19 pandemic.

Businesses 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. Businesses may not exclude customers based on speculative or unfounded fears, unsupported by current medical knowledge or objective evidence.

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. For that reason, businesses that rely on such tests as a screen must also consider additional information that a customer voluntarily chooses to provide related to the direct threat assessment, including evidence that may rebut or provide context for the results of the screening test. If a customer cannot safely be admitted into a place of public accommodation because they appear to pose a direct threat, the provider of public accommodation must consider alternative ways to safely provide services to the customer, for example, by providing no-contact delivery service or meeting the customer on the sidewalk to conduct a transaction, unless doing so would pose an undue hardship. Please consult the NYC Department of Health's website for updates on COVID-19 testing and symptoms.

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Reasonable accommodations: Public accommodations have an ongoing duty to provide people with accommodations for disabilities, including those related to COVID-19, unless doing so poses an undue hardship or would create a direct threat to health or safety that cannot be adequately mitigated by a reasonable accommodation. This obligation extends to all disabilities, including those 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. Examples of reasonable accommodations include allowing customers to order by phone and do a no-contact pickup of purchases as an alternative to shopping inside and ensuring that, where feasible, aisles that are rearranged to facilitate social distancing provide enough space for wheelchair access.

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Special guidance for essential retail services: Essential retail services, such as grocery stores and restaurants, face special challenges in the midst of the COVID-19 crisis. This guidance is intended to assist those businesses in complying with the NYCHRL, while also taking steps to protect their customers and employees, for example through policy changes recommended in the City's April 20, 2020 Frequently Asked Questions (FAQs) For Essential Retail Businesses and Their Customers During the COVID-19 Public Health Emergency. Essential retail services should bear in mind the following considerations about the NYCHRL.

• Reasonable accommodations must be made available for people based on disability, including pregnancy-related disability, unless doing so would pose an undue hardship or pose a direct threat. Examples of reasonable accommodations may include:
  • Allowing people who are unable to stand in line for extended periods because of a disability to enter the store without waiting in the same line as other customers, or to shop during hours reserved for vulnerable populations.
  • Placing a chair outside a restaurant to accommodate an individual with a disability who is unable to wait in line to pick up food, despite the general policy prohibiting the placement of chairs and benches outside of restaurants for consumption of food.
  • Allowing people with disabilities who rely on the assistance of another person to enter the store with a companion, despite a general business policy restricting access to one person at a time.
  • Allowing entrance to people with disabilities who are unable to medically tolerate wearing a face covering, despite general policies requiring face coverings for all customers. (Businesses should note that Executive Order 202.34, issued by Governor Cuomo on May 28, 2020, authorizes businesses to require that customers wear face coverings and to expel people who fail to comply with that requirement only if those people are "over age two, and able to medically tolerate a face-covering." That executive order does not override businesses' obligation under the NYCHRL to engage in the cooperative dialogue process or to provide reasonable accommodations for disabilities.)
• The Commission has received reports that some stores have excluded parents and caregivers seeking to enter with a child or other dependent, on the ground that only one person may enter at a time. The City and the New York State Department of Agriculture and Markets have advised that stores "have one family member shop at a time, if possible" (see here); however, store policies that categorically exclude customers from entering with a child or dependent may expose the stores to potential liability under the NYCHRL for discrimination based on age, gender, or disability. Stores may limit the total number of people admitted at a time, but should allow entrance to customers who need to carry out their shopping with their children or other dependents.
• When faced with a request for a reasonable accommodation for a disability, stores should limit their questions to understanding the type of accommodation that would address the customer's disability-related need. Invasive inquiries about the nature of a person's disability or demands for proof are prohibited. Bearing in mind the added difficulties that people with disabilities may face when shopping during the ongoing crisis, essential retail services are encouraged to take a generous approach to providing reasonable accommodations and to ensure that, regardless of disability, all customers are able to safely obtain their services.