Faruqi Law Explores the Designation of COVID-19 as a Protected Classification

The COVID-19 pandemic has had outsized effects on the nation as a whole, but especially in New York City, where case rates skyrocketed during the early months of the pandemic. Public health officials scrambled to find ways to keep the disease from spreading as physicians tried to discover the best ways to treat people suffering from this severe illness.

On May 5, 2020, the New York City Commission on Human Rights issued guidance stating that an actual or perceived infection with COVID-19 is a covered disability under New York City human rights laws.

Faruqi & Faruqi LLP explains how COVID’s designation as a covered disability has affected New York City’s legal landscape.

Protection Against Discrimination

The New York City Human Rights Law prohibits discrimination based on national origin, race, age, and disability. This law affects people who have COVID-19 or people who have been perceived in public to have the illness.

One of the sad effects of the COVID pandemic is discrimination and harassment aimed at Asian communities within the city. There is an unfair public perception that Asian people are somehow responsible for the virus, and many people of Asian descent have been attacked and harassed through no fault of their own.

The New York City Human Rights Law makes it easier to prosecute people who have committed these acts of violence. It also covers other issues related to having COVID-19, including housing provisions, employment protections, and public accommodations protections.

Housing Protections

Housing providers are not allowed to discriminate against residents who have or are perceived to have COVID. They must not be harassed or kicked out. It is illegal for housing providers to discriminate based on a general feeling that they are more likely to have or contract COVID in the future. This includes actual or perceived race, disability, national origin, and other protected classes.

Housing providers are also not allowed to charge extra fees related to cleaning and disinfection of the building.

Employment Protections

The New York City Human Rights Commission protects people from being discriminated against in the workplace due to having had COVID-19 or due to being perceived to have the virus. Accommodations must be made within the workplace to help protect people in high-risk categories from contracting the virus. For example, people aged 65 and older or carrying certain serious health conditions may be eligible for an extended telework period. Employers must take reasonable steps to protect their staff and clients’ safety, including methods like telework, staggered work schedules, changing the workplace layout, and providing personal protective equipment.

Employers need to be responsive to the demands of COVID-19. Their means of allowing reasonable accommodations need to be in line with other protected classes of workers. For example, if a worker has a hearing disability, the office will need to provide face masks with a clear plastic panel to enable them to read lips.

Public Accommodations

Businesses must also refrain from harassing or discriminating against their customers due to actual or perceived COVID infection. Companies are allowed to deny people who are reasonably believed to have an active COVID infection from entering their facilities because these people can affect others’ health and safety.

Business owners may enforce the requirement that customers wear masks and social distance on their premises. Businesses must not exclude customers like older individuals who do not pose a direct threat but simply may have a higher risk of being seriously affected by the virus itself.

Businesses are allowed to conduct temperature and symptom checks before people enter their premises. They should make sure that the testing is conducted in accordance with current medical knowledge. Businesses must not exclude customers based on unfounded or speculative fears, especially if they are not supported by current medical knowledge or objective evidence.

Unique Guidance for Essential Retail and Restaurants

Businesses must provide reasonable accommodations for their visitors regardless of any disability they may have, including COVID-19 risk. Businesses are encouraged to find ways to make their pandemic business model adaptable to the needs of disabled persons. For example, instituting special shopping hours for older customers or those with disabilities is a positive step. Another step that these businesses must take is allowing people with certain medical conditions to forgo wearing masks in their business location, even though general mask statutes are in play.

COVID and Disability

As the COVID pandemic winds down thanks to the recently implemented vaccine programs, businesses should not let their guard down protect their employees and visitors from harassment. Housing providers have corresponding responsibilities under the New York City Human Rights Law.

The COVID pandemic is continuing to make a serious impact on how New Yorkers live, work, and do business. Overall, Faruqi Law wants New York City business owners and managers to know that any discrimination based on protected classes, including real or perceived COVID infection, will not be tolerated.