COVID-19 and Human Rights

 

Purple image with a silhouette of two heads talking, each with an "X" in a speech bubble above them.  Text on the right says "Fear about COVID-19 is not an excuse for harassment or discrimination."  NYC Commission on Human Rights logo appears in bottom right corner.

Last Updated: August 6, 2020

Harassment and discrimination on the basis of race, national origin, age, and disability (including having COVID-19 or another serious illness) is illegal under the New York City Human Rights Law. In recent months, we have seen a sharp increase in instances of hostility and harassment directed at Chinese and other Asian communities related to COVID-19 anxiety. The Commission on Human Rights, the Mayor's Office for the Prevention of Hate Crimes, and the Mayor's Office of Immigrant Affairs are coordinating closely to educate the public about their rights and protections in light of COVID-19 related stigma and hate crimes. If you have faced harassment or discrimination in housing, at work, or in any public place, contact the Commission by filling out our online form or by calling (212) 416-0197. If you are a victim of or witness a hate crime, call 911.

Information about coronavirus (COVID-19) is changing at a rapid pace. For the latest information, text “COVID” to 692-692 or visit the NYC Department of Health and Mental Hygiene (DOHMH) website at NYC.gov/coronavirus where you will find information about preventing the spread of this disease, symptoms, and guidance on citywide mandates such as school and business closures.

Race discrimination is illegal in all medical settings in New York City.
Discrimination and harassment due to COVID-19 are illegal in New York City.

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Fact Sheet on Hate and Bias Incidents Related to COVID-19

Hate or discrimination on the basis of race, national origin, or other characteristics is not tolerated in NYC. The New York City Commission on Human Rights, the Office for the Prevention of Hate Crimes, and the New York City Police Department are monitoring and responding to hate and bias incidents related to COVID-19. Download this fact sheet for additional resources to address bias, harassment, discrimination and to access mental health support.

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Case Deadlines

For claims set to expire between March 20, 2020 and September 3, 2020, the deadline to file a complaint under the New York City Human Rights Law is extended to September 4, 2020. For more information, see Governor Cuomo's initial Executive Order and most recent modified Executive Order on tolling deadlines. Deadlines in ongoing cases at the Commission have also been extended during this time period. If you have questions about this, fill out our online form or call (212) 416-0197.

Appeals in Cases Dismissed for Administrative Cause or No Probable Cause

Due to the disruption that COVID-19 has caused, the Commission will postpone issuing decisions on appeals in cases where the complaint was dismissed by the Law Enforcement Bureau for administrative cause, under section 8-113(a), or no probable cause under section 8-113(d) of the New York City Human Rights Law. If you have questions about this, contact policy@cchr.nyc.gov, and review our fact sheet about appeals of dismissals for administrative cause and fact sheet about appeals of dismissals for no probable cause.

Housing 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). Housing providers must not harass or discriminate against residents, kick them out, or ask them to leave their apartment because of fears or stigma around COVID-19. It is also illegal for a housing provider to harass or discriminate against a resident 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.

If you are facing harassment and discrimination by your landlord, please contact the NYC Commission on Human Rights.

General prohibitions against discrimination: Even in the midst of a pandemic, protections against discrimination under the NYCHRL remain in effect. If a housing provider learns or believes that a resident has or had COVID-19, they cannot retaliate or discriminate against the resident by, for example, seeking to remove the resident, or charging the resident additional fees related to cleaning or disinfecting the building. Housing providers may take reasonable steps to protect the health and safety of their staff and residents, and should follow local, state, and federal public health orders and recommendations.

Reasonable accommodations: Housing providers have an ongoing duty to provide residents with reasonable accommodations for disabilities, including those related to COVID-19. Housing providers must accommodate people with disabilities, unless doing so poses an undue hardship or where the disability presents a direct threat that cannot be adequately mitigated by a reasonable accommodation. This obligation extends to all disabilities, including both those directly related to COVID-19 and underlying conditions for which exposure to COVID-19 may pose a particular risk of complication, which the CDC has identified here.

Policies implemented to ensure the safety and health of residents, including, for example, limiting visitors or deliveries, must allow for reasonable accommodations for people with disabilities who may require a visitor to assist with basic needs or to carry deliveries to their door, rather than leaving them in the lobby. Housing providers must engage in a cooperative dialogue with their residents to determine what accommodation would meet the residents’ need and not pose an undue hardship.

Please consult the Commission’s Legal Enforcement Guidance on Discrimination on the Basis of Disability for more information about the cooperative dialogue process and reasonable accommodations for disabilities.

If a housing provider learns about a resident’s infection with COVID-19, it should maintain that information in a confidential manner.

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, 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 19, 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.

Supplemental information and key things to note regarding the Commission's application of the EEOC guidance:

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 disability law, nor does it limit the NYCHRL beyond the scope of what is covered within the EEOC guidance.

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, 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, such as employees over age 65 or who are pregnant. 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, and providing personal protective equipment.

Reasonable accommodations: Employers have an ongoing duty to provide employees with accommodations for disabilities, including those related to COVID-19, unless doing so poses an undue hardship or where the disability presents a direct threat that cannot be adequately mitigated by a reasonable accommodation. This obligation extends to all disabilities, including both those directly related to COVID-19 and underlying conditions for which exposure to COVID-19 may pose a particular risk of complication, which the CDC has identified here. Employers also have an ongoing duty to provide reasonable accommodations for workers who are pregnant. 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 telework, 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 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.

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 for a disability. 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 (updated May 7, 2020), 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. 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.

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.

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.

Testing and assessing the risk of a direct threat: 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 COVID-19 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 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, by, for example, 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 or due to their religion, employers should treat it accordingly as a request for a reasonable accommodation. In addition, 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 somewhat 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) 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 CDC’s website for updates on COVID-19 testing and symptoms.

Commission resources: 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. See this fact sheet concerning employment questions related to COVID-19 and remote work. 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

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.

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 CDC’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 CDC 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.

  • 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.