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. 

Shoppers and gift givers need not worry about additional fees on Gift Cards/Certificates this holiday season. New York’s new law protects consumers from the predatory business practice of adding fees on gift cards. As mentioned in greater detail on our previous Blog, the law aims to prevent businesses from charging a plethora of additional fees on gift cards. The law further protects consumers from gift card expiration dates of fewer than 9 years, as well as prohibiting declining balances on gift cards over time. In addition, the law allows consumers to redeem remaining balances of $5 or fewer on gift cards.

If businesses are caught in violation of the Law, not only will they end up on Santa’s Naughty List, but businesses may also face court issued injunctions regardless of proof that anyone was injured or damaged because of the violation; and may face court issued fines of not more than $1,000 per violation.

If you purchased or received a gift card with added fees, an expiration date, or a declining balance then the business that issued the gift card may be liable for compensatory damages, punitive damages, penalties, and attorneys’ fees being awarded to the victim. If you believe that you were subjected to this kind of unlawful business practice by a merchant, you should speak to a lawyer and leverage New York General Business Law section 396-i to win your case.

The New York State Legislature passed Bill S4516C, which criminalizes falsifying COVID-19 vaccination records including cards, and the bill awaits the Governor's signature to become effective, as law, immediately when signed. 

The Bill amends the Penal Law to include vaccination cards as a written instrument. For a false vaccination card to be considered a written instrument the card must include either a government logo or something suggesting it was created by a government entity; it must suggest that the card was provided to a person by a vaccine provider; and must includes a date the person received the vaccine, the type of vaccine, and a lot number.

The Bill also amends the Penal Law to include that when someone intentionally alters, in any manner, or destroys computer material indicating that a person did or did not receive a vaccination against COVID-19, it shall be considered the crime of computer tampering in the third degree.

The penalties for violating this new law are class A misdemeanor for tampering with public records in the second degree; class D felony for tampering with public records in the first degree; class A misdemeanor for offering a false instrument for filing in the second degree; class E felony for offering a false instrument for filing in the first degree; class E felony for issuing a false certificate; and class E felony for computer tampering in the third degree. 

The New York State Legislature passed Bill S3437C that establishes a dedicated phone line for public use to voice complaints of housing discrimination. New York State’s Division of Human Rights will operate the phone line during regular business hours. The phone number will be posted on the Division of Human Rights website.

The Bill amends Human Rights Executive Law The General Powers of the Human Rights Division, Section 295 . It awaits the Governor's signature to become effective, as law, 120 days after it is signed.

Nothing in this Bill prevents you from hiring an attorney to pursue damages resulting from discriminatory conduct. If you believe that you suffered injuries as a result of housing discrimination, you may be entitled to compensatory damages and punitive damages plus, you can have your attorneys' fees paid for by the defendant. 

New York State's Department of Health issued new details for Governor Hochul's statewide mandate requiring face mask/covering at all indoor public places effective December 13, 2021 until January 15, 2022 (State will re-evaluate after this date), for all persons, over age two and able to medically tolerate a face covering/mask, regardless of vaccination status. Indoor public places are any indoor space that is not a private residence. 

The mandate does not apply to indoor public areas that require proof of vaccination as a condition of entry. However, a business cannot "mix and match" i.e. permit individuals who show proof of vaccination to enter mask free while permitting those who do not present proof of vaccination to enter wearing a mask. Either no one is permitted entry that cannot provide proof of vaccination or everyone must wear a mask (whether vaccinated or not).

For example, in a law office where everyone must show proof of vaccination to enter (employees, clients, vendors, etc.) masks are not required.  However, a retail store that does not require proof of vaccination to enter is required to ensure that all individuals present at the store (employees, customers, etc.) wear face coverings regardless of vaccination status.

Per the Department of Health, the following institutions must ensure everyone over the age of two, unless subject to applicable CDC exceptions, is masked (there is no proof of vaccination option): correctional facilities, detention centers, homeless shelters, transportation hubs, schools.

The new requirements are pursuant to New York State administrative rule 10 NYCRR 2.60.  A violation of any of these requirements is subject to a fine of $1,000 for each violation. Businesses should, thus, immediately ensure compliance or face potential crippling fines.

It is the beginning of the end of paper copy lease agreements in NYS, at least for rent stabilized tenants. 

Moving forward, rent stabilized tenants are going to be processing their leases electronically because Bill A02679 passed the legislature and is pending Gov. Hochul's signature. This Bill requires that the Division of Housing and Community Renewal ("DHCR") develops regulations allowing electronic leases and signatures to be used for both leases and lease renewals of rent stabilized tenants. 

However, the Bill makes clear that electronic leases are not yet required. As such, those who may not be well-versed in technology, such as the Baby Boomer generation, need not worry about how this could affect their lease execution process as tenants will be able to choose whether or not they want to execute their lease via electronic means or via a traditional paper copy. A tenant will be presented with a form, developed by DHCR, in the top 6 languages that will confirm that the tenant has the choice whether to consent to the use of electronic records and signatures. Therefore, landlords will not be permitted to require their tenants to execute their lease by electronic means.

It is expected that electronic leases are going to become the norm sooner rather than later. They cut down on costs of office supplies, such as printer ink and paper, while provide for improved organization and retrieval. They save time by avoiding face-to-face meetings and can maximize safety in this COVID world. 

Do you think most rent stabilized tenants will choose to have their leases executed electronically? Or, will paper copies stand the test of time in a constantly evolving technology driven world? Seems unlikely. It's my guess that as the Boomer generation dissipates, paper copy leases will as well. 

 As of October 7^th, 2021, the Town of East Hampton made changes to their Zoning Laws that are relevant to constructing an accessory structure.

§ 255-11-20 of the Town of East Hampton Zoning Laws states that accessory buildings, including garages, if detached from the main building, shall be not less than five feet from the main building and/or from any other accessory building, subject to two exceptions.

One exception is that two or more accessory buildings (including open-air appendages such as porches and screened patios) may be approved to be built or remain, without a minimum five-foot separation, so long as the total aggregate square footage of the buildings is less than 600 square feet, and none of the accessory buildings are a pool house, an art studio, or an accessory apartment, unless all three are open air appendages.

The second exception, is that an enclosed hallway, breezeway or other design feature that functionally separates two livable spaces in a single-family dwelling or separates a livable space in a single-family dwelling and a detached garage, does not apply to § 255-11-20, so long as the width of such hallway, breezeway or design feature is equal to or greater than ½ of its length.

An accessory building is a building which is customarily secondary to a main building. Accessory units do not include a building which is designed, equipped, or used for cooking, living or sleeping purposes. A common accessory building is a garage.

So, if you plan on purchasing a house with an accessory building like a detached garage, or even plan on building one at your Hamptons house, you should comply with this law to avoid liability.

Starting on July 1, 2022, Bill (S2132B) will add increased fair housing and discrimination training for Real Estate Brokers and Salespersons. 

Summary:

• Requires course content to include:
1. Legacy of segregation, unequal treatment, and historic lack of access to opportunity in housing;
2. Unequal access to amenities and resources on the basis of race, disability and other protected characteristics;
3. Federal, state, and local fair housing laws;
4. Anti-Bias training.
• Requires 152 hours of training to obtain a Real Estate Broker license
• Requires 77 hours of training to become a licensed Real Estate Salesperson
• Requires approval of faculty to sign a document, under oath, approved by and submitted to the Department of State, attesting to compliance with all applicable statutory and regulatory requirements pertaining to the instruction of the established curriculum. There will be penalties for faculty that fail to meet their obligations including suspension and revocation of their instructor certificate.

Now there is another initiative by New York State to combat discrimination in real estate.

Effective as of December 21, 2021 a $30 fee has been added for real estate broker / salespersons licenses to cover the costs of the Attorney General to fund fair housing testing throughout NYS. 

Senate Bill S32133A adds a surcharge to the fee paid for issuing or reissuing a real estate broker or salesmen license.