COVID-19 & Public Accommodations Protections - CCHR

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COVID-19 & 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 treat customers differently 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.

While businesses can maintain policies requiring customers to wear face coverings or show proof of vaccination, they must implement these policies in non-discriminatory ways. Businesses must also provide reasonable accommodations to customers with disabilities, as discussed in more detail below.

For more information about how to equitably implement policies requiring customers to show proof of vaccination for entry, see the Commission's Guidance for Public Accommodations on Equitable Implementation of COVID-19 Vaccine Requirements.

Last updated: September 27, 2021

Contents

General prohibitions against discrimination

Testing and assessing the risk of a direct threat

Reasonable accommodations

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. Essential retail services, such as grocery stores and restaurants, should review the 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 for guidance about how to equitably implement rules regarding face coverings.

A business may exclude customers who the business reasonably believes 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 require customers to show proof of vaccination before entering their premises or wear face coverings while on their premises, but they must implement these policies in a non-discriminatory way. For example, they cannot:

Scrutinize proof of vaccination more closely when it is provided by people of a particular race, national origin, or religion based on the perception that people in those groups are less likely to be vaccinated; or

Require face coverings only for older people or people with disabilities based on the belief that COVID-19 is more dangerous for them.

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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.

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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.

Public accommodations that choose to implement policies requiring customers to wear face coverings or show proof of vaccination before entering must still make reasonable accommodations for customers who are unable to comply because of a disability, including a pregnancy-related disability, unless doing so would pose an undue hardship or a direct threat. Examples of reasonable accommodations may include:

Allowing customers to order by phone and do a no-contact pickup of purchases as an alternative to shopping inside.

Allowing customers 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.

Allowing customers 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 customers with disabilities who are unable to medically tolerate wearing a face covering, despite general policies requiring face coverings for all customers.

Allowing customers who are unable to show proof of vaccination because of a disability, including a pregnancy-related disability, to enter the premises while taking other safety-related measures, such as wearing a face covering and ensuring social distancing.

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.

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