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
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.
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.
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.
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.