EEOC Provides Clarifications on Religious Exemptions to COVID-19 Vaccine Mandates

The Equal Employment Opportunity Commission ("EEOC") recently released new guidance on religious exemptions to COVID-19 vaccine mandates. The new guidance provides clarifications regarding employers' and employees' obligations, including the following:

• In requesting a religious accommodation, an employee must specify that there is a conflict between the vaccine requirement and their sincerely held religious beliefs.
• If an employer has an objective basis to question either the "religious nature or the sincerity of a particular belief," the employer can seek additional supporting information from the employee regarding their religious beliefs.
• Objections to COVID-19 vaccinations based on social, political or personal preferences do not qualify as sincerely held religious beliefs.
• In assessing whether it can deny an accommodation request based on an undue hardship, an employer should consider factors such as whether the employee: works outdoors or indoors, works in a group setting, has close contact with other individuals, as well as the number of employees seeking a similar accommodation. 
• The employer can choose its preferred accommodation that would resolve the employee's conflict even if it is not the accommodation requested by the employee. 

Since every request requires an individual assessment of the employee's religious beliefs and potential burden to the employer, employers should seek the advice of legal counsel prior to making a determination.

New Tenant Disclosure Form on Reasonable Modification and Accommodation Required

Effective today, all owners, lessees, sub-lessees, or managing agent of housing accommodations are required to provide a reasonable modification and accommodation disclosure form to tenants pursuant to recent amendments to the New York State Human Rights Law.

Specifically, the new law requires the reasonable modification and accommodation disclosure form prescribed by the New York State Division of Human Rights (NYSDHR) be provided within 30 days of the beginning of a tenant’s lease or within 30 days of March 2, 2021 for all current tenants. The disclosure form must also be conspicuously posted on every vacant housing accommodation that is available for rent.

Seems simple enough, right? Apparently not. As of today, the disclosure form has not been published by NYSDHR and so, compliance by real estate professionals is currently impossible. Until NYSDHR prescribes a form, to reduce exposure, all leases should include language notifying tenants and prospective tenants of their right to request reasonable modifications and accommodations if they have a disability under the New York State Human Rights Law.

Victim of Domestic Violence experiencing PTSD deemed Disabled and entitled to Reasonable Accommodation under ADA

In a recent New York City Civil Court decision, the Court held that disability due to domestic violence can entitle a tenant to a reasonable accommodation under the Americans with Disabilities Act (ADA).

Specifically, in Schuhab HDFC v. Delacruz (Case Number: 64402/17), the court held that the tenant’s post-traumatic stress disorder (PTSD) from domestic violence should entitle her to a probationary order as reasonable accommodation. Under the Fair Housing Act, a landlord is required to provide a handicapped tenant with a reasonable accommodation for the tenant to keep the apartment (42 U.S.C.3605(f(3)(B)). In this case, such reasonable accommodation was in the form of a probationary stay – instead of the tenant getting evicted right away, she was allowed to stay subject to several conditions to prevent any adverse effect to other tenants and guests.

As background, the case was commenced as a holdover landlord-tenant eviction proceeding by Schuab HDFC against the tenant on the grounds that the tenant used or permitted the premises to be used for the distribution and/or sale of controlled substances. The tenant’s defense was that she neither knew of or acquiesced to the illegal activity. She also requested the court grant her a reasonable accommodation in the form of a probationary stay in the premises as a result of her disability from being a victim of domestic violence.

The Court’s decision narrates and incudes the instances of domestic violence that the tenant suffered from her former partner, the resulting PTSD, and the circumstances which led to her partner’s use of the premises for drug activity as testified by the tenant. While considering the tenant’s testimony and her psychiatrist’s input, the Court agreed in finding that the tenant suffers from PTSD and such disability should entitle her to a probationary stay under the Fair Housing Act.

Consequently, the Court granted the landlord a final judgment of possession against the tenant and other occupants, but also granted the probationary stay in the tenant’s favor as a reasonable accommodation under the FHA. The tenant is required to exclude her former partner from the premises, avoid and preclude others from participating in drug-related activity in the premises for a period of two (2) years. In the event of a breach, Petitioner may move for the issuance of a judgment of possession and warrant of eviction.

Real estate professionals should be aware of this decision in order to ensure compliance with the Fair Housing Act and limit exposure to claims of discrimination for refusing to provide reasonable accommodations.

Bans Against Smoking May Discriminate Against the Elderly and Disabled

The Department of Housing and Urban Development (HUD) is proposing a ban on smoking in public housing units nationwide to protect residents from the dangers of secondhand smoke. Citing to the higher risks of cancer and other diseases associated with secondhand smoking, HUD Secretary Julian Castro stated that this policy would protect millions of Americans from preventable diseases every year. Additionally, it would save public housing agencies millions of dollars in repairs from fire and smoke damage caused by lit tobacco products.

The “castle doctrine” is a long-standing legal doctrine allowing individuals certain protections in his or own home. However, if HUD’s proposed ban is enacted, public housing will no longer be a castle for those residents who want to smoke in the privacy of their own homes. By conducting public health studies and hearing public comments, HUD is within its rights to create such a ban.

Many public housing agencies across the country have already implemented anti-smoking policies due to the HUD’s vigorous campaign to adopt such policies since 2009. However, this proposed ban would require all public housing agencies to conform to a non-smoking policy in not only the residences but also the indoor common areas, administrative offices, and within 25 feet outdoors of these units.

It is unclear how the rule will be enforced and what kinds of accommodations will be offered to smokers who already reside in these public housing units. Though the act of smoking lit tobacco products does not fall under a protected class, this policy may have a disparate impact on elderly and disabled smokers who cannot easily leave their homes every time they want a cigarette. If the elderly and disabled are unable to conform to the rule, they be forced out of their residences without any other place to go.

Secondhand smoke is a public health issue, but HUD must tread lightly to offer reasonable accommodations to those who already reside in public housing and who may not be able to abide by the new rule.  Otherwise, HUD may face a flood of discrimination lawsuits.