7/5/20 - Seg 4: 5 Steps to Address Disabled Employees or Tenants

July 05, 2020 Andrew Lieb / Lauren Lieb / Mordy Yankovich Season 1 Episode 78
7/5/20 - Seg 4: 5 Steps to Address Disabled Employees or Tenants
Show Notes Transcript

If you are a landlord, property manager, broker, or business owner - this is a must listen to so that you can protect yourself from a disability discrimination lawsuit. Mordy Yankovich, Esq joins us to review the 5 Step Process he developed from a recent Appellate Court case.

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Your personal coach and trusted attorney Andrew Lieb. We'll help you get started in building your real estate empire, grow your self confidence, find your grit and get the skills needed to dominate the real estate world. This is real estate investing with Andrew Lieb.

Andrew Lieb (26s):
Right before the commercial. We were talking about homelessness and there's a big, big policy thing going on because the landlords and I'm a landlord and you are a landlord. And we all care about landlords are very upset because we got this new federal court case. We got this new law in the state of New York, and they're all preventing key in on the word. Loren, residential landlords, not commercial to stopping eviction proceedings keen on the word for nonpayment, not holdover. A holdover means when they stay after the term. That's not what these laws are about. It's when they don't pay. And they're saying, when tenants don't pay, we're not going to evict.

Andrew Lieb (58s):
And you showed me this great article in Politico that said evictions are coming. I don't know if it's great. It made me very sad. It said New York is facing a potential explosion in homelessness. And I want to talk to everyone about policy. Every policy that a legislator makes an executive makes executives like the governor or the president, the legislators like the Congress, people are going to be upset about they don't work for everyone. And I'm getting the short end of the stick right now, because right now they're making it much harder for landlords like me to stay in business at the end of the day, though, if I don't stay in business, BU who is me, but if a tenant gets evicted, you know what happens?

Andrew Lieb (1m 34s):
We're going to have a mass problem in our society because there's no place for them to live. And then we're going to have health crises. And then we're going to have problems with public relations. And this is not a permanent solution, but I think what the government's saying, Lauren, is that they don't want to address this in the middle of a pandemic. Well, they're also saying that, you know, if you're a landlord and or if you're you're in a regulated industry, this is just part of the job. And when you're in a regulated industry, there's lots of different rules. And I want to tell you, there was another fascinating case that came out recently. It's called husking bloom Memorial Sloan Kettering.

Andrew Lieb (2m 4s):
You've probably heard of Sloan Kettering, the cancer place. And this case is all about what you need to do. When a tenant, they're not about a ton and there's an employee, but the same rule, a tenant or an employee has a disability and they want an accommodation. And what I'm going to do is I'm going to bring in an expert for this. I'm going to bring in my friend Mordy Yankovich from my law firm. He's the discrimination expert. And he's going to come in and explain to us the five step process that a landlord employer, a landlord, an employer needs to do. If they don't want to lose a discrimination case when their employee, their tenant needs an accommodation, hold on, let me grab him.

Andrew Lieb (2m 39s):
He is my favorite employment attorney at Lieb at Law, not just employment but also discrimination. He does it for the landlords. He does it for the tenant. This guy does discrimination while you've had multiple of these clients, even this last month name, a great name, and he's a great guy, but what's important. More importantly is what he did. That's great. He took this Hoskins case that I was talking about before the break, Mordy, before we had you on what we were talking about, just so you know, I know it's a static when you listen and you're on the air, it's a whole to do. So what we were talking about Mordy is we were talking about how there's policy decisions that have to favor tenants.

Andrew Lieb (3m 11s):
And we were getting at the fact that if they didn't have these eviction moratoriums, what would happen is that we'd have mass homelessness and that's going to hurt people like me, landlords, but at the end of the day, maybe it's better than the public health crisis we'll have from homelessness in the middle of a pandemic. And I was saying that there was also another important case called Hoskins V Memorial Sloan Kettering that talked about people with disabilities. And it talked about what you have to do if you're an employer or a landlord with someone with disability and you read this case and you made it so simple, Lauren always gets mad at me. She's like stop talking like a lawyer. And what you did is you made it simple with a list of what people should do when they got an accommodation request.

Andrew Lieb (3m 46s):
Can you just start off with telling me what I'm talking about with an accommodation request?

Mordy Yankovich (3m 50s):
Sure. Well, first of all, thank you for that great intro. I loved it. I mean, it would be the only thing we'll make it better if you, if you had a song to play for me, but you know, we can do that next time. There we go. There we go. So what an accommodation request is is if an employee or a, a tenant has a qualified disability under the law and in the employment context that can do their, their job without a, an accommodation or in the housing context, they need an accommodation to be able to use the use the facilities.

Mordy Yankovich (4m 26s):
They can request an accommodation from the employer or the land.

Andrew Lieb (4m 30s):
And what does an accommodation mean though? Like writing them a letter, like an accolade, like dear tenant, you've been accommodated.

Mordy Yankovich (4m 37s):
No, I mean, in the, in, in the tenant context, most of the time we see it with requests for service animals, or some, you know, minimal repair that can make it easier for a, it kind of delivers in the building and the employment in the employment context. It can be anything from working from home to not having to lift to a, a certain amount of, of leave.

Andrew Lieb (5m 2s):
So basically basically what you're saying is a change to the policies or structure to enable the person with a disability have equal use and enjoyment or abilities at the job or place of living. Am I getting that too? Basically.

Mordy Yankovich (5m 15s):
Yes. But in the appointment context, I would just change that to say that in accommodation so they can perform the, the essential functions of their job.

Andrew Lieb (5m 25s):
All right. So here's the thing I come to you. And I said to you, I need a service lion.

Lauren Lieb (5m 31s):
I love Lions! I was watching tiger King, and I think it's the best show.

Andrew Lieb (5m 36s):
Watch more than one episode Lauren. It was so good, Joe, exotic. I have posters of him all over my room now,

Lauren Lieb (5m 44s):
So what room is that?

Andrew Lieb (5m 47s):
We don't invite you in that one. So here's the thing I have. I have a service lion and I come to you and I say, I have a service lion and you say, Hey, no, you say no. And then I Sue you for disability. You're going to lose,

Mordy Yankovich (6m 5s):
You know what? You might, you might, you, you might win because if I just say no right away, without actually having a conversation with you and going through, what's known legally as the interactive process. Even if the ultimate decision is no way, he can't have a line that took, that's an undue hardship. If you don't actually engage in the process of meeting with this tenant and, and discussing what potential accommodations might work for them, and you just flat out deny an accommodation requests without going through the process.

Mordy Yankovich (6m 37s):
Yes, you can. You can be sued.

Lauren Lieb (6m 39s):
Wait a minute. So you're saying that there's an actual process that you have to go through. You can't just say, I need a lawyer,

Andrew Lieb (6m 44s):
Lauren, in this case, that was the whole case. That's why I'm already, and I want it to go about the case that no matter how stupid and ridiculous the request is, if you don't go and dot your I's and cross your T's, you still lose.

Lauren Lieb (6m 53s):
So if I need my iguana with me and it doesn't matter what

Andrew Lieb (6m 57s):
It's going to eat, your Guana, I just want you to know

Lauren Lieb (6m 59s):
Polar bears makes me feel better. My anxiety will tell us...

Mordy Yankovich (7m 3s):
With the court what the, what the court said is that they're not even going to reach the step as to whether the accommodation request is reasonable. If you don't go through the process,

Andrew Lieb (7m 15s):
I want to know this process. So if you're a landlord, any landlord, you're a property manager, you're a broker. You run any business. You need to listen and take notes right now. We're going to go real slow on this process that you have to do, because if you don't go through this process, you will lose a discrimination case. So says the appellate court in Husky go for millions of dollars. Come on, man.

Mordy Yankovich (7m 35s):
Yeah. So I, so I, so I broke this down to a five step process. That is, is it's pretty easy to follow. Not in legal step one is you need to have a accommodation policy. So someone that's requesting an accommodation knows where to go. That's step one.

Andrew Lieb (7m 51s):
Writing is on writing. So reading policy yeah.

Mordy Yankovich (7m 53s):
And writing. So for exactly, so it, an employer should put the policy in the handbook, a landlord should, should disseminate the policy to the tenants. Yes. It's. It needs to be in writing. Yes. Step two is you should have a reasonable accommodation form or request form for people requesting an accommodation to fill out and, you know, obviously need the general information, contact information.

Andrew Lieb (8m 20s):
Pretty interesting. There's this big shot attorney in the Hamptons. We were just talking to her file from the dance papers on him. This is a big shot attorney in the Hamptons. I know that was on the bar association listserv, and someone want to emotional support animal. And he said, well, we have a no pet policy in the lease. So we don't need to deal with that crap. And I said, back on the list of the bar association listserv, I said, did you know, New York city commission of human rights suggests that if you have a no pet policy, you attach a form to the lease for the accommodation. Because if you don't do it, you're dissuading a disabled person from even asking. So it's exactly what you're saying.

Mordy Yankovich (8m 51s):
Yeah. And, and you need to highlight in there that there are exceptions. So step one

Andrew Lieb (8m 56s):
Was have a policy. Step two was have a form what's step three,

Mordy Yankovich (9m 0s):
Step three is review the form. And then you actually have to, we call it an interactive process. It's called interactive because you have to discuss it with the, with the tenants or the employee. And you need to go through potential options that can help, help this employee or tenants with their, with their, with their disability

Andrew Lieb (9m 23s):
And everyone that in the state of New York, there's one party consent to recording a conversation. So when you're going through this process, you better know what you're saying, because if you don't say the right thing, the conversation itself could be a discriminatory event. So maybe you want to put it in writing, or maybe you want your attorney to do this for you. We did step one was have a policy. Step two was have a form. Step three was having interactive process. Tell me, step four,

Mordy Yankovich (9m 44s):
Step four is, well, once you've had the conversations you've gone over and you've gone over potential accommodations. And assuming there is a, an accommodation that can work the, the employer or the landlord should analyze whether this would con this accommodation would constitute an undue hardship. Now it's very hard to claim an undue hardship. It can't just be, you know, a, a dog they want to have to clean the dog's poop or something like that. It has to actually be a significant hardship in terms of costs, in terms of the resources of the employer

Andrew Lieb (10m 19s):
Than an example could be that I'm disabled. I need to do water therapy. And I said to you, I need you to build a pool for me to do water therapy. That's ridiculous.

Mordy Yankovich (10m 27s):
Correct. And the employer contacts, you need to create a brand new position for me, or you need to, you know, either yes, those, those, those, those would be, those would be undue harm.

Andrew Lieb (10m 38s):
So I need to go back to step five. I need to hear about step five right now. So step one was that you have a policy step two was that you have a form. Step three was that you engage in the interactive process. Step four was you do undue hardship. Step five,

Mordy Yankovich (10m 51s):
Step five is you want to draft a, a written determination letter and you need to, you, you want to distribute that to the person that that made the request and you want in there, you're going to write whether it was the accommodation was if an accommodation was, is granted. What's the accommodation. If it's denied, you better have good detail as to why it's being denied.

Andrew Lieb (11m 14s):
Marty. I just want to thank you for giving us that step five step process. When you're getting a disabled tenant or a disabled employee, they're making a request for an accommodation that's Mordy Yankovich his five step plan to not get sued and do the interactive process. Right? And I want to thank Brynn Elliott from the Brynn Elliott team who underwrote this segment, because if you don't know this guy's a star, he just won an award for doing 123 closings last year, check out the Brynn Elliott team at Douglas Elliman real estate for your real estate needs. Thanks so much. See you next week. This was Andrew and Lauren Lieb and listen to leap with real estate investing with Andrew Lieb, enjoying this is real estate investing with Andrew Lieb.

Andrew Lieb (11m 53s):
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