Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On April 19, 2020, the New York City Commission on Human Rights (the “Commission”) announced that it has formed a COVID-19 response team to handle reports of harassment and discrimination related to the coronavirus outbreak. The COVID-19 response team includes staff from the Commission’s Law Enforcement Bureau and Community Relations Bureau. The Commission reports that since February and as of April 16, 2020, it has received 248 claims of harassment and discrimination related to COVID-19. Forty percent (105) of the reports involved anti-Asian harassment or discrimination. By comparison, in 2019, only five reported incidents involved anti-Asian harassment or discrimination. Currently, the Commission is actively investigating 18 COVID-19-related cases.
The Commission has also adopted the EEOC’s guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.1 The Commission advised that in general, compliance with the EEOC guidance will satisfy employers’ obligations with respect to disability protections under the New York City Human Rights Law as they relate to COVID-19. However, the Commission also provided additional guidance to supplement the EEOC guidance. Specifically:
- General prohibitions against discrimination: Employers must be sure that their policies and practices, including those implemented in response to COVID-19, like newly implemented work-from-home policies, do not discriminate against or treat workers less favorably based on their protected status, including race, national origin, citizenship, immigration status, and disability, among others.
- Reasonable accommodations: Employers still have a duty to provide reasonable accommodations to their workers. Employers should accommodate people who have contracted, are suspected of having been exposed to, or are recovering from COVID-19, unless doing so poses an undue hardship. In addition, employers may be required to provide reasonable accommodations to employees with underlying conditions for whom exposure to COVID-19 may pose a particular risk of complication or who are pregnant, by, for example, allowing them to telework, changing their schedules, or providing certain personal protective equipment.
- 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 New York City Human Rights Law beyond the scope of what is covered within the EEOC guidance.
- Medical notes: Because requests for medical notes related to COVID-19 could place excess burdens on the health care system, employers should not request medical notes to confirm disability related to COVID-19.2 In addition, employers should not request medical notes from employees seeking accommodations related to pregnancy, childbirth, or a related medical condition. Although the Commission’s Legal Enforcement Guidance on the Basis of Pregnancy typically permits employers to request a medical note involving accommodations related to time away from work (including for medical appointments, or to take additional time to recover from childbirth beyond the presumptive six- to eight-week period), due to the extraordinary circumstances of the COVID-19 pandemic, employers should not require medical notes for accommodations related to time away from work, if, due to the COVID-19 pandemic, such medical notes are difficult to obtain.
The Commission’s supplemental guidance regarding medical notes is similar to the CDC’s guidance, which discourages requiring a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness, in order to reduce the burden on busy healthcare providers. However, employers do have a right under New York COVID-19 Sick Leave Law and the Family First Coronavirus Response Act to request documentation to support an employee’s leave request.
The increase in anti-Asian discrimination and harassment that has been reported nationwide prompted the Commission to create a response team. Employers may, therefore, want to be particularly alert to harassment of employees based on their ethnicity or national origin. However, the response team will focus on all types of discrimination and harassment that may be related to COVID-19. Accordingly, employers must ensure their workplaces are free from hateful speech and discrimination/harassment towards any protected group. Employers should take this opportunity to reinforce their anti-discrimination/harassment policies, reminding employees that discrimination or harassment based on any protected category is prohibited. Employers should take every reported complaint seriously and promptly investigate each incident. These investigations should be impartial, prompt and appropriately documented.
Employers should also take into consideration the potential disparate impact that personnel changes may have on individuals in protected categories. For example, employers should base personnel changes on legitimate, non-discriminatory and non-retaliatory reasons. Further, employers must make sure that any decision to terminate or furlough is based in sound business reason, is applied to employees consistently, and is well-documented.
Employers should also consider a disparate impact analysis prior to a personnel change such as a furlough or reduction in force in order to determine if any protected groups are being furloughed or laid off at a higher rate than those who do not belong to a protected group. A statistical analysis will show whether employees in a protected class are being furloughed or laid off in a disproportionate manner, which may necessitate a reexamination of the selection process and decisions, to be sure they were based on business necessity and fairly and uniformly applied.
1 The guidance, which can be found here https://www.eeoc.gov//facts/pandemic_flu.html, was originally published on October 9, 2009, and reissued on March 19, 2020, in response to the COVID-19 pandemic.
2 Employers should keep in mind that pursuant to New York City’s Earned Safe and Sick Leave Law employers cannot require medical documentation from employees unless they have been absent for more than three consecutive days. Practically speaking, however, it may be difficult for employees to see a doctor during the current pandemic so requiring such documentation may prove impractical.