New Workplace Accommodation Requirements for NYC Employers

Effective October 15, 2018, employers in New York City will be required to engage in a “cooperative dialogue” with any person who may be entitled to a workplace accommodation. This recent amendment to the New York City Human Rights Law (“NYCHRL”) expands an employer’s obligation to address possible accommodations with the employee beyond what is required under either Federal or New York State law, and further expands the categories for which an employee may request accommodations.

Many employers already have an existing duty to engage in an interactive process with employees under various laws:

• Under the Americans with Disabilities Act (“ADA”) and New York State Human Rights Law (“NYSHRL”), an employer must engage in an interactive process regarding accommodations for an employee’s qualifying disability;
• Under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the NYSHRL, an employer must engage in an interactive process regarding accommodations for an employee’s religious beliefs;
• Under the NYSHRL, an employer must engage in an interactive process regarding reasonable accommodations for pregnancy-related conditions.

What types of accommodation requests are covered under the expanded NYCHRL?

Under the NYCHRL, employers with four or more employees will be required to engage in a cooperative dialogue for accommodations relating to: (1) disability; (2) religious needs; (3) pregnancy, childbirth, or a related medical condition; and (4) a person’s needs as a victim of domestic violence, sex offenses, or stalking.

How is the cooperative dialogue requirement triggered?

The employer’s obligation to engage in a cooperative dialogue is triggered once an employee has requested an accommodation, or the employer is on notice that the employee may require an accommodation, such as when the employee’s need for accommodation is apparent, or a request is made on the employee’s behalf.

What is the cooperative dialogue?

“Cooperative dialogue” is defined as the process by which an employer and employee engage in a good faith written or oral dialogue concerning the employee’s accommodation needs, potential accommodations that may address the person’s needs – – including alternatives to a requested accommodation – – and the difficulties that such potential accommodations may pose for the employer.

How is this different than an interactive process?

While the purpose of both the interactive process required under the ADA and Title VII and the cooperative dialogue required by the amended NYCHRL is to identify potential accommodations for an employee, the ADA and Title VII do not elaborate on the exact steps an employer must take as part of the interactive process. In contrast, the cooperative dialogue specifically addresses what an employer must do to fulfill their obligations, including the employer’s duty to properly document their determination regarding an accommodation, as addressed below.

Is documentation required?

Following the cooperative dialogue, the employer is also obligated to provide any person requesting an accommodation, who participated in the cooperative dialogue, with a written final determination identifying any accommodation granted or denied. Further, the determination that no reasonable accommodation would enable the employee requesting an accommodation to satisfy the essential requisites of the job, or enjoy the right(s) in question, can only be made after the parties have engaged, or the employer attempted to engage, in the cooperative dialogue process.

It is an unlawful discriminatory practice for an employer to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation or who the employer has notice may require an accommodation. Likewise, the statute is also violated if the employer does not engage in the cooperative dialogue, even where the employee would not have been able to perform the requisite job duties even with an accommodation. Moreover, under this amendment, an employer’s compliance with the cooperative dialogue requirement is not a defense to a claim of not providing a reasonable accommodation to an employee.

If you feel that your rights have been violated, please contact Borrelli & Associates, P.L.L.C. to schedule a consultation.