During A Pandemic, Must My Employer, In New York, Allow Me To Work Remotely?
During the COVID-19 pandemic, your employer in New York may, or may not, be required to allow you to work remotely or to continue working remotely.
Laws Requiring Employers To Reasonably Accommodate Workers’ Disabilities
The relevant statutes are the federal Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law.
Under the federal Americans With Disabilities Act (the “ADA”), employers with 15 or more employees are required to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer’s business.
Similarly, under the New York State Human Rights Law (the “State Human Rights Law or the “NYSHRL”, it is an unlawful discriminatory practice for an employer with four or more employees to refuse to provide reasonable accommodations to an employee’s known disabilities, or pregnancy-related conditions, of an employee or a prospective employee. Effective February 8, 2020, employers in New York State with one to three employees, too, are prohibited from refusing to provide such reasonable accommodations.
However, the State Human Rights Law does not require an employer to provide accommodations that can be demonstrated to impose an undue hardship on an employer’s enterprise.
Within the five boroughs of New York City, the New York City Human Rights Law (the “City Human Rights Law” or “the NYCHRL”) requires an employer with four or more workers (whether employees or independent contractors) to provide reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job, provided that the disability is known or should have been known by the employer. The City Human Rights Law also requires employers with four or more workers to reasonably accommodate (i) an employee’s religious practices, (ii) an employee’s pregnancy, childbirth, or related medical condition, and (iii) an employee’s needs as a victim of domestic violence, sex offenses or stalking. The NYCHRL defines a “reasonable accommodation” as an accommodation that can be made that does not cause undue hardship in the conduct of the employer’s business. The employer has the burden of proving undue hardship.
In New York City, there is an affirmative defense in cases in which the need for reasonable accommodation is in dispute. Specifically, under the NYCHRL, it’s an affirmative defense that the disabled person could not, with reasonable accommodation, satisfy the essential requisites of the job.
So, let’s apply these statutes to the COVID-19 pandemic.
Application, To The COVID-19 Pandemic, Laws Requiring Employers To Reasonably Accommodate Workers’ Disabilities
Under the ADA, the State Human Rights Law, and the City Human Rights Law, businesses in New York should consider making telework available during the COVID-19 pandemic, when possible and feasible with business operations. “Telework” occurs when your employer permits or allows you to perform work while you are at home or at a location other than your normal workplace.
Employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.
If an employee has a disability which puts him at greater risk from COVID-19, and that employee requests telework as a reasonable accommodation, the employer must consider the employee’s request under the usual, above-described ADA rules.
Similarly, under the NYCHRL, an employee is entitled to reasonable accommodations related to a disability, and that remains true when the disability puts them at increased risk of complications from COVID-19. The underlying conditions that public health authorities have thus far identified as increasing complications from COVID-19 generally qualify as disabilities under the NYCHRL. When an employee seeks an accommodation based on a disability, the NYCHRL requires the employer to engage with the employee in a cooperative dialogue about the person’s accommodation needs and potential accommodations that may address those needs. An employer must provide a reasonable accommodation unless doing so would pose an undue hardship.
However, an employee is not entitled to an accommodation under the ADA to avoid exposing a family member who (rather than the employee himself or herself) is at higher risk of severe illness from COVID-19 because of an underlying medical condition. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to unjust treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other people with whom the employee is associated.
For example, an employee without a disability is not entitled under the ADA to telework as an accommodation to protect a family member with a disability from potential COVID-19 exposure.
To the extent that an employer is permitting telework to employees because of COVID-19 and is electing to excuse an employee from performing one or more essential functions, then a request by the employee — after the workplace reopens — to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate a vital role as an accommodation for an individual with a disability.
The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise elected to allow telework, does not mean that the employer permanently changed the job’s essential functions, that telework is always a feasible accommodation, or that telework does not impose an undue hardship on the operation of the employer’s business. These are fact-specific determinations. The employer has no obligation under the ADA (i) to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the previous work arrangement or (ii) to refrain from then considering any requests for continued or new accommodations under the usual ADA rules.
The NYCHRL Does Not Allow For Accommodations Based On Age. Older workers may seek to telework for an extended length of time or may seek leave instead of returning to the workplace out of a legitimate fear of contracting COVID-19. Under the NYCHRL, employers are not legally required to provide reasonable accommodations to employees based solely on age and are prohibited from implementing policies in an age discriminatory manner. Employers do, however, have an ongoing duty to provide employees with accommodations for disabilities unless: doing so poses an undue hardship or the disability presents a direct threat that a reasonable accommodation cannot adequately mitigate. Workers of all ages may have underlying health conditions that put them at greater risk for a serious illness if they become infected with COVID-19, and in such circumstances have a legal right to an accommodation based on disability.
It is unlawful, under the NYCHRL, for employers to have a policy in place that would permit older workers to work remotely while prohibiting younger workers from doing so.
Requests To Continue Working Remotely. As businesses seek to bring their workforces back on-site, some employees may seek to continue working remotely for various reasons.
A generalized fear for their health and safety: The NYCHRL does not require employers to provide accommodations based on an employee’s generalized fears of catching COVID-19. That said, other laws may limit employers’ ability to force employees to return to work in unsafe conditions, including because of COVID-19.
Risks of complications related to a pregnancy: An employee is entitled to reasonable accommodations related to pregnancy, childbirth, or a related medical condition, including accommodations to protect against the increased risk of complications from COVID-19.
An inability to obtain childcare: The NYCHRL does not require employers to provide accommodations based on an employee’s status as a parent or a caregiver. However, the NYCHRL prohibits discrimination based on an employee’s status as a caregiver. Employers must ensure that they are not discriminating against caregivers if the employers are providing accommodations to other employees beyond what is legally mandated. By way of example, it would be unlawful for an employer to provide employees with minor schedule changes for attending graduate school but not for caregiving responsibilities.
If you are an executive or a professional in the New York City metro area and you believe that you have been or that your employer has failed or refused to reasonably accommodate your disability, call New York City Wrongful Termination Attorney David S. Rich at (347) 941-0760 today.
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