New law establishes Office of the Advocate for People with Disabilities. The Office assures that disabled people are afforded the opportunity to exercise all of the rights and responsibilities accorded to citizens of New York.

Operating under the Department of State, the Office shall advise and assist state agencies in developing policies designed to help meet the needs of the disabled by:

• Coordinating the implementation of the Americans with Disabilities Act;
• Ensuring that state programs do not discriminate against disabled people; 
• Ensuring that programs provide appropriate services for disabled individuals; and 
• Working with state agencies to develop legislation and potential regulatory changes.

Landlords should be actively removing barriers to access so that this new Advocate doesn't bring suit against them for violations of the Americans with Disabilities Act (ADA). 

Thousands of Americans who have contracted COVID-19 may now qualify for disability under the Americans with Disabilities Act (ADA).

The Equal Employment Opportunity Commission (EEOC) passed new ADA guidelines to cover individuals with COVID-19 disabilities.

There are three ways a person can be deemed to have a COVID-19 disability under the ADA.

1. A person with COVID-19 has an Actual Disability if the person’s medical condition or any of its symptoms is a "physical or mental" impairment that "substantially limits one or more major life activities." An individualized assessment is [required] to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination.
2. A person who has or had COVID-19 can be an individual with a Record of a Disability if the person has "a history of, or has been misclassified as having, an impairment that substantially limits one or more major life activities, based on an individualized assessment.”
3. A person is Regarded as an Individual with a Disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the person has [COVID-19].”

In some cases, regardless of whether an individual’s initial case of COVID-19, itself, constitutes an actual disability because the case-by-case evaluation does not result in such a determination, that individual’s COVID-19 may end up causing impairments that are themselves disabilities under the ADA.

If you meet either the “actual" or “record of” definition of disability you may be eligible for a reasonable accommodation at the workplace.

It is unlawful for employers to discriminate against employees or applicants based on a COVID-19 disability. Further, it is unlawful for employers to refuse to provide reasonable accommodation for those with COVID-19 disabilities if it does not place an undue hardship on the employer.

If you believe you’ve been the target of COVID-19 Disability Discrimination by an employer then you should seek the counsel of an attorney to determine the extent of your injuries. Your attorney can assist you filing a legal complaint with EEOC. If the employer is found to have acted unlawful according to the ADA, then your attorney can leverage your position so you are awarded compensatory damages, penal damages, penalties, and attorney fees.

Also, don't forget that state and local anti-discrimination laws have lower standards to qualify for protection so even if you don't qualify under the ADA, check your state, county, city, or town / village. 

The MTA needs to explain what reasonable accommodations it made for passengers with disabilities to access the subways during its frequent and inconvenient elevator outages according to the Second Circuit Court of Appeals in Brooklyn Ctr. for Indep. of the Disabled v. Metro. Transp. Auth.

This raises an important question for all landlords - what do you do to provide access for disabled people when your elevators don't work? 

According to the Court, "[a]n “accommodation must overcome . . . non-trivial temporal delays that limit access to programs, services, and activities.” 

While the the MTA offered accommodations such as busing alternatives, notice of outages, and permanent signage explaining alternative routes, the Second Circuit said that wasn't enough to summarily dismiss the case.

Have you audited your accommodation offerings recently? If not, you should. 

Many more disability lawsuits are anticipated after the 2nd Circuit ruled that temporary injuries qualify as disabilities under ADA. 

An injury that only lasts 19 days can constitute a qualifying disability for purposes of a failure-to-accommodate claim under the Americans with Disabilities Act, according the Second Circuit Court of Appeals in Hamilton v. Westchester Cnty. 

For background, disabled individuals have a legal right to demand a reasonable accommodation from rules, policies, and procedures so that they can have equal access to public services, enjoyment of property, and opportunities at work. 

When disabled individuals are denied rightfully requested accommodations, lawsuits happen for big $$. 

When disabled individuals aren't provided with a forum to negotiate an accommodation, known as the interactive process, lawsuits happen for big $$. 

When disabled individuals aren't even provided with an opportunity to request an accommodation in the first place (such as by a form or notice), lawsuits happen for big $$. 

Simply, disability discrimination law is a really big deal, with big numbers at stake, to employers and property owners / managers. In fact, 26% of US adults have some sort of disability according to the CDC. As a result, every employer and property owner / manager must understand this new change in the law. 

Before this case, it was unclear in the Second Circuit, which controls NY, CT, & VT, whether an individual with a short-term disability from an injury could qualify for an accommodation under the law. 

Now, we know that they qualify. 

While the case before the Circuit Court was about an inmate at the Westchester County Jail, who claimed a denial of an opportunity to participate in or benefit from services, programs, or activities, under Title II of the ADA, the takeaway is that temporary disabilities can trigger the protections of the ADA under all three of its Titles, including:

• Title I - Employment & Hiring
• Title II - Public Services, Programs, & Activities
• Title III - Public Accommodations (i.e., commercial property & websites) 

It is clear that the Circuit Court intended all three Titles to apply to temporary disabilities because it expressly based its decision on the 2008 ADA Amendments Act, which broadened the definition of "disability" under the ADA to include temporary or Transitory injuries. In so reasoning, the Circuit Court pointed to 28 CFR 25.108(d)(ix) (i.e., the regulations to the ADA) to find that a "'disability' shorter than six months in duration now can be actionable under the ADA." 

Now, all employers, property owners, brokers, property managers, and governmental officials in NY, CT, & VT better adjust their policies and afford rights to those disabled from injuries (even really short-term injuries) or they are going to get sued?

Have you ever been denied your rights to have policies adjusted to enable you to have the full enjoyment of life, which was otherwise problematic because of your disability?

Shouldn't disabled people be given every benefit to fully enjoy life?

This is good law.

The United States Court of Appeals for the Second Circuit of New York recently dismissed a lawsuit filed by four African American firefighters, pursuant to the American with Disabilities Act, claiming that the FDNY discriminated against them by denying their request for a reasonable accommodation to grow facial hair.

In Bey et al. v. City of New York et al., the four African American firefighters suffered from pseudofolliculitis barbae ("PFB"), a skin condition most commonly affecting African American males, which causes skin irritation after shaving (The lower court previously dismissed the plaintiffs race discrimination claims). The Second Circuit ruled that the FDNY did not discriminate against the firefighters because they were abiding by a binding safety regulation requiring firefighters to be clean shaven in areas where a respirator seals against the skin on their faces. The Court further stated that any challenge to this regulation should be directed to OSHA (Occupational Safety and Health Administration), not their employer. 

Do you agree with the decision? 

According to Business Insider, Dollar General is paying their employees to get the COVID vaccine, but is that legal? 

Back in 2017, the federal courts, in AARP v. EEOC, addressed the issue of paying employees for participation in wellness programs and found that both the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act were violated because the incentives permitted rendered the programs not voluntary, as required by law. The incentive, at issue in the case, was "up to 30% of the cost of self-only coverage." 

How does that comport with what Dollar General is now doing? 

They are offering four hours of pay to their employees. 

Is that too much to make participation voluntary? 

Ironically, the Equal Employment Opportunity Commission is proposing a new regulation about this voluntary standard in the Federal Register for public comment. This new regulation proposes to change the 30% incentive limit (as addressed in the federal case above) to a de minimis incentive limit. In fact, the regulation gives examples of a permitted de minimis incentive, like a water bottle or modest gift card.

Isn't four hours of pay worth a lot more than a water bottle? Is Dollar General going to get sued for this program. What do you think? 

The US Department of Transportation just added a new wrinkle into your post-pandemic travel plans if you have an emotional support animal. According to new regulations, effective January 11, 2021, carriers can consider emotional support animals to be pets and therefore, make no special accommodations for you even if you are emotionally disabled and need such emotional support animal to function. This is a particularly troublesome decision by the US Government for veterans suffering from PTSD and autistic individuals who both often need emotional support animals to function. 

The new regulations also have enhanced rules for disabled passengers with service animals. A service animal is now defined as a "dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability." As a result, if you have a service monkey or peacock, too bad - these animals don't count anymore. Previously, they did as per the Department of Transportation's website and pursuant to a 2008 regulation (14 CFR 382.117).  

Even if your service animal is a dog, there are other rules that you still need to know. The Department of Transportation is created a form that can be required for travelers requesting an accommodation. This form requires that you certify that your animal is trained, has good behavior, and good health. Additionally, the form can be required up to 48 hours before flights or at the departure gate for animals that will be transported in the cabin. Finally, the regulations allow carriers to require service animals to be harnessed, leashed, or otherwise tethered while onboard. 

It is imperative that airlines train their teams about these new regulations and travelers are immediately noticed about their lessoned rights and heightened obligations.

The Federal Courts, in the Southern District of New York, awarded $125,000 to each individual who was denied cosmetic surgery due to their HIV-Positive status in interesting discrimination case. 

The case was brought under Title III of the Americans with Disabilities Act of 1990 (ADA) and the New York City Human Rights Law.

The penalty was based upon the HIV-Positive individuals' traumatic experiences, resulting in significant feelings of humiliation, shock, and worthlessness, as well as anxiety, stress, sleeplessness, and feelings of stigma and humiliation.

Again, $125,000 was awarded to each victim of discrimination who experienced emotional distress.

What do you think the award should have been?

1. Nothing
2. $20,000
3. $125,000
4. $1,000,000

• The ADA allows employers to terminate employees, or take other measures, based on the illegal use of opioids. However, legal or prescriptive opioid use cannot be a ground for automatic disqualification and employers must consider a way for the employee to do the job “safely and effectively” 
• Employees who test positive to a drug test must also be given an opportunity to provide information about their legal drug use that may cause a drug result to show opioid use. The employer can ask the employee before the test is done if he/she is taking any such medication or the employer can ask all employees who test positive for an explanation. Such should be established by protocol and implemented consistently. 

• Employees who legally use opioids must be given a reasonable accommodation before getting fired or not considered for a position. This also applies to employees who have a history of opioid, or treatment for opioid addiction, which an employer thinks can interfere with safe and effective job performance.
• Employees may also request a reasonable accommodation from taking prescription opioids to treat pain or from having other medical conditions related to opioid addiction as long as the condition is a disability under the ADA.
• It is the employees’ responsibility to request a reasonable accommodation and employers cannot legally fire or refuse to hire or promote an employee for making the request. A request protocol should be established and applied consistently.
• Employers must provide the reasonable accommodation if it does not involve significant difficulty or expense.