Legal Updates for Employment Law - March 9, 2018

Amended NYC Law Requires Employers to Cooperate with Employees Seeking an Accommodation

March 9, 2018

Effective October 15, 2018, covered employers in New York City will be required to engage in written or oral “cooperative dialogue” with employees who may be entitled to a reasonable accommodation.

As many know, the New York City Human Rights Law (NYCHRL) is one of the most comprehensive and progressive local anti-discrimination laws in the country. It requires covered employers to make reasonable accommodations for religious needs, victims of domestic violence, disabilities, and individuals with pregnancy and related issues so long as the accommodations do not impose “undue hardship” on the covered entity. Prior to the current amendment, the NYCHRL did not specifically require covered employers to engage in a process with regard to a request for a reasonable accommodation by an employee.

The amended law does three things:

Makes it an “unlawful discriminatory practice” if a covered entity refuses or fails to “engage in a cooperative dialogue within a reasonable time with a person [entitled to a reasonable accommodation under the law] who has requested an accommodation or who the covered entity has notice may require such an accommodation”;
Requires the covered entity to “provide a written determination” [to the person requesting the reasonable accommodation] “identifying any accommodation granted or denied” at the conclusion of the dialogue;
Mandates that the determination that no reasonable accommodation “would enable the person requesting an accommodation to satisfy the essential requisites of a job or enjoy the right or rights in question may only be made after the parties have engaged, or the covered entity has attempted to engage, in a cooperative dialogue.”

Notably, “compliance with this amendment is not a defense to a claim of not providing a reasonable accommodation under provisions of Title 8 other than this subdivision.” This amendment overrides how some New York State courts have interpreted the NYCHRL, and this amended process differs somewhat from the federal “interactive process” mandated by the Americans with Disabilities Act. Accordingly, covered employers in New York City should adjust their procedures to require their human resource professionals, or those charged with employee relations, to engage in a cooperative dialogue with those employees who request an accommodation. They must be prepared to provide a written determination identifying any accommodation granted or denied.

While the statute does not appear to specifically require that the written determination include the basis for granting or denying the accommodation, it is highly recommended that the covered employer be prepared to back up the determination with a sound, rational basis for any claim of “undue hardship.” Finally, it should go without saying that, if the dialogue takes place in the form of emails or other written electronic communication (i.e., texts), it is highly recommended that such communications be vetted prior to being sent to the requesting employee.

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