Vince Callagy, NYARM Seminar Co-Chair; Robert Gosseen, Gallagher Gosseen Faller Kaplan & Crowley; Howard Schechter, Schechter & Brucker PC; Rochelle Captan, NYARM Seminar Co-Chair and Frank DeLucia, Kaye Insurance Associates

Daniel Konig, attorney for NYS DHCR; Jane Berrie, Director of Management Bureau, DHCR; Elliot Ashrey, Assistant Director of Management Bureau DHCR; Amy Rega and Frank Clark, Keyspan Energy Management (formerly R. D. Mortman)

Greg Carlson, Carlson Realty; Chuck Holden, Esplanade Gardens; Bob Wiesenfeld, Lawrence Properties; Frank DeLucia, Kaye Insurance Associates and John Hendrick, Cosmopolitan Associates.

Bruce Braithwaite, Dayton Beach Park #1 Co-op; Kennetha Pettus, The Sheldrake Organization; Mary Sweeting and Chuck Holden, Esplanade Gardens and Danny Sifonte, A. J. Clark.

Myrtle Punch, Grenadier Realty; Mamie Freeman, The Arco Corp; Ken Schwartz, Lockman Security Systems; Ken Olsen and Shaun Covington, C & C Management.

On Tuesday, February 27, 2001 more than fifty NYARM members and industry professionals gathered at Madison Square Garden's conference area to learn about the legal ramifications of dealing with tenants and staff in need of reasonable accommodations due to disabilities.

Vince Callagy, general manager at Knickerbocker Village and NYARM board member and seminar co-chairman served as moderator. The panelists included Howard Schechter, partner in the law firm Schechter & Brucker, PC; Frank DeLucia, Kaye Insurance Associates and Robert Gosseen, partner in the law firm Gallagher Gosseen Faller Kaplan & Crowley.

DEALING WITH RESIDENTS
Mr. Schechter asked the following questions of the attendees:
1. If you treat all of your shareholders alike and enforce your rules and regulations equally against all shareholders, can your board be sued and held liable for discrimination?
2. If a shareholder asks the board to make a special exception for her that permits her to violate a long standing rule, may the board always say no? and
3. Many of the shareholders in a co-op are elderly and use canes and walkers. Parking is provided on a non-reserved basis. One shareholder asks for a reserved space right next to his apartment. May the board refuse?

No one in the audience attempted a response, and it became obvious that there are no simple answers to the above situations or others posed during the course of Mr. Schechter's comments. It did become clear that each and every case must be dealt with on an individual basis.

DISABILITY
According to Mr. Schechter, not only can you not discriminate against those that are disabled but you must make a reasonable accommodation if they request one. So, what is a disability? According to Federal law a disability is a physical or mental condition that "substantially limits a major life activity" such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, etc. According to New York State and City law a disability is one that impairs any body system. (Yes, in New York we get to be compliant on two levels, both Federal and State/City.)

REASONABLE ACCOMMODATION
A reasonable accommodation is an adjustment to the rules, policies, practices or services so that a resident can have equal opportunity to the use and enjoyment of a dwelling. This accommodation must be easily made to the physical environment but should not "fundamentally alter the landlord's relationship with the resident or impose undue financial or administrative burdens on the landlord."

For example if a landlord was replacing all the bathroom sinks in a building and a wheelchair bound tenant requested a lower sink as an accommodation the landlord would be compelled to grant the request at his own expense. If the tenant requested a lower sink outside of a building wide renovation the landlord is not responsible to pay for the accommodation but must allow the tenant to install a handicapped accessible sink at the tenant's expense.

BOARD RESPONSE
In closing, Mr. Schechter warned the audience to guard themselves from making discriminatory statements. He also advised everyone not to procrastinate when a reasonable accommodation request is made. Confirm the disability and evaluate the cost and how an accommodation will impact on the other residents. And, seek professional help.

INSURANCE
According to Frank DeLucia of Kaye Insurance Associates every building or cooperative should have the following basic coverage: property, general liability and umbrella. It should be noted that most general liability policies do not cover the defense of discrimination in a disability case. The only insurance carrier that provides this type of coverage is Chubb.

This does not mean however, if you have Chubb insurance you are covered! Owners and management companies need to purchase a separate Professional Liability Policy (PLP) which covers defense for discrimination, sexual harrassment, etc. from tenants. To protect owners and management companies from their own employees an Employment Practices Liability Policy (EPLI) must be purchased to cover them from sexual harrassment, discrimination and wrongful termination suits.

Other Director's and Officer's policy enhancements that Mr. DeLucia recommends are prior acts, third party discrimination and employer practices coverages.

DEALING WITH EMPLOYEES
Robert Gosseen represents management against employees. He assured the audience that most cases can and should be resolved in the workplace "because the consequences of losing are severe." Each employee should be individually assessed. When looking for a reasonable accommodation, conduct an interactive dialogue with the employee. The reasonable accommodation you find may not be the one the employee wants, but it still may be reasonable.

Many accommodations, assured Mr. Gosseen, are simple and inexpensive. Take the janitor complaining of back problems. Order a mop with a longer handle and see if that alleviates his problem!

Employee misconduct, whether caused by the disability or not, is not protected by the Americans with Disabilities Act (ADA) (e.g., excessive absenteeism, chronic tardiness, insubordination, assault or other violent behavior). Mr. Gosseen instructed the audience to enforce absentee rules. "You have businesses to run as long as you don't act in a disparate manner."

Never perceive an employee as disabled and guard against acting in a disparate manner toward him based on that perception, warned Mr. Gosseen. You cannot refuse to promote a rank-and-file employee with high blood pressure or one who is obese to a more stressful position out of fear that the position will be detrimental to his or her health. You also cannot segregate an HIV-infected employee from the rest of the staff out of a belief or perception that he will infect them.

Mr. Gosseen recommended everyone log onto the Equal Employment Opportunities Commission's (EEOC) website for "nineteen pages of good stuff", regulations dealing with disabilities at www.eeoc.gov/docs/accommodation_procedures_eeoc.html.

The question and answer period that followed the presentation exposed the variety of problems and concerns that confront managers when dealing with disabilities and accommodations. The information and advice in each case was invaluable not only to the manager with the problem but to everyone who may encounter the same or similar problem in the future.

CONTACTS
HOWARD SCHECHTER SCHECHTER & BRUCKER, PC.
350 Fifth Avenue suite 4510
New York, NY 10118
212-244-6600
212-244-6784 fax

FRANK DeLUCIA
KAYE INSURANCE ASSOCIATES
122 East 42 Street
New York, NY 10168
212-338-2395
212-338-2555 fax


ROBERT GOSSEEN
GALLAGHER GOSSEEN FALLER KAPLAN & CROWLEY
350 Fifth Avenue suite 603
New York, NY 10118
212-947-5800
212-967-4965 fax

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