NYC Issues New Disability Discrimination Manual
The New York City Commission on Human Rights (the “NYCCHR”) recently released an updated manual on disability discrimination, replacing the April 2019 version. The guide is designed to help employers, housing providers, and the general public better understand the protections afforded to people with disabilities under the New York City Human Rights Law (the “NYCHRL”).
As a reminder, the NYCHRL broadly defines disability as any “physical, medical, mental, or psychological impairment,” or a history of such impairment, and requires employers to handle requests related to disability with appropriate interpersonal and legal care.
While the updated manual largely represents a streamlining of the April 2019 version, there are some key updates for employers to consider. First, the NYCCHR added a new section on artificial intelligence. The manual instructs employers that they are “responsible for ensuring that they are not relying on any technology or artificial intelligence in a manner that results in discrimination” and specifically calls out that seemingly neutral technology may nevertheless create liability if it causes a disparate impact on individuals with disabilities. Accordingly, the NYCCHR recommends that employers have mechanisms in place to ensure that the use of AI tools is not causing intentional discrimination or a disparate impact on applicants and employees with disabilities. The guidance further states that the use of technology in employment applications and screening may constitute unlawful discrimination if the employer does not allow individuals with disabilities to request a reasonable accommodation that would allow them to apply for open positions without utilizing specific technologies.
Another topic expanded on in the updated manual is requests for remote work arrangements. The updated manual notes that allowing an employee to work remotely may be a reasonable accommodation for an employee with a disability. While assessing accommodation requests will always be a fact-specific inquiry conducted in dialogue with the employee, the updated guidance states that: “The mere fact that the employee would be working outside of the physical office space some or all of the time during a given period generally will not be sufficient to support an undue hardship defense.” Instead, to establish an undue hardship defense, an employer would have to demonstrate why that particular employee’s absence from the office, in light of their essential duties, would cause an undue hardship, or that a different accommodation that would meet the employee’s needs has been offered. The guidance does however confirm that employers are permitted to approve remote work for a limited time frame and reevaluate the employee’s needs on a periodic basis.
Finally, the manual added new guidance on service and emotional support animals. The guidance instructs that employers must accept service animals, and make any necessary modifications to any “no pets” or “no animals” policies in order to allow for service animals, unless doing so would cause an undue hardship. Notably, the guidance requires landlords to accommodate both service and emotional support animals, where the guidance to employers only covers service animals.
With the recent guidance in the updated manual, the NYCCHR may focus on the newly highlighted areas with increased scrutiny. Therefore, it is a good time to consider reviewing handbooks, policies, and procedures in these key areas.
Employers with questions about the updated manual, employer policies, or accommodation requests should contact Jack Culhane at jculhane@fglawllc.com, Tonianne Florentino at tflorentino@fglawllc.com, or any attorney at the firm.
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