How to Avoid Discrimination Claims in the Pandemic

New York State and New York City have provided new guidance regarding discrimination related to COVID-19. Co-op and condo boards need to be aware of these guidelines and how to best protect themselves against possible claims of discrimination and harassment by their employees.
 
New York State Human Rights Law
This law protects individuals from discrimination based on, among other things, race, national origin and disability. The new guidance issued by the state’s Division of Human Rights specifically provides that an employer cannot fire an employee, send him home or tell him not to come to work because the employer believes the employee has been exposed to COVID-19, based solely on the employee’s race, national origin or disability.
 As an example, a cooperative employs three doormen: one is an African-American living in Queens, while the other two are Caucasians living in Westchester County. The cooperative should not tell the African-American doorman not to come to work or terminate him because of the perception that, because of his race, he alone among the three doormen has been exposed to the virus.
Not only would the termination in that case be discriminatory, but the cooperative could also be held responsible for the doorman’s missed wages during the period of his suspension or termination.
New York City Human Rights Law
The New York City Commission on Human Rights has also clarified that harassment and discrimination based on fears of COVID-19 because of an individual’s race, national origin, age, disability or other protected class is illegal under the city’s Human Rights Law. The city, importantly, also considers actual or perceived infection with COVID-19 to be protected as a disability under the law. While an employer can take reasonable steps to protect its staff and clientele, it cannot discriminate against its employees.
Employers must provide employees with reasonable accommodations for disabilities unless doing so poses an undue hardship. This extends to all disabilities, including those directly related to COVID-19 and those for which COVID-19 exposure may pose a greater health risk. A reasonable accommodation might be allowing employees to work remotely, modifying work duties, changing a schedule or providing protective equipment.
Under the city’s Human Rights Law, if an employer knows that employees have a medical condition that might place them at “higher risk for severe illness” if they should contract COVID-19, the employer must engage the employees in a cooperative dialogue about a potential accommodation, even if the employees have not requested it.
 For example, a condominium employs a front-desk person who has a greater risk for COVID-19 exposure because she has severe asthma. If the board is aware of her medical condition, it must work with her to provide a reasonable accommodation. This may entail providing her with extra protective equipment or changing her schedule to an overnight shift so she has less contact with the public and the residents.
Prior to the COVID-19 pandemic, a New York City employer could, before providing a reasonable accommodation, require an employee to provide documentation from a health-care provider confirming the employee’s disability. The city’s Commission on Human Rights is now advising employers to waive this requirement until the employee can reasonably obtain the documentation.  Employers, given the pandemic, should adopt a more flexible approach.
An employer can require employees to undergo testing (such as temperature checks) to ensure that they do not constitute a threat to other staff members or, in the case of condominiums and cooperatives, to residents. Employers may also ask an employee who has tested positive for COVID-19 to provide evidence that he has recovered and is not contagious before permitting him to return to work.
Andrew I. Bart is an attorney at Borah, Goldstein, Altschuler, Nahins & Goidel.