Beginning on October 15th, employers with four or more employees in New York City will be required to engage in a “cooperative dialogue” with employees who qualify for reasonable accommodations under the NYC Human Rights Law (NYCHRL). While employers have been required to engage in an interactive process with employees under the Americans with Disabilities Act and NYCHRL in connection with assessing a reasonable accommodation for qualified disabled individuals, this recent amendment to the NYCHRL takes that process to another level and imposes additional obligations on employers, which will require them to adjust their policies and practices.
Under the NYCHRL, “cooperative dialogue” is defined as a good faith written or oral dialogue, by phone, email, or in person, that addresses the following: 1) evaluates the person’s accommodation needs; 2) considers the possible options for accommodations that could address those needs, including alternatives to the requested accommodation; and 3) explains the difficulties that a potential accommodation may pose for the employer. After the parties have engaged in the cooperative dialogue process, the employer must provide the employee a final written determination identifying any accommodation granted or denied.
An employer’s obligation to engage in the cooperative dialogue is not limited under the NYCHRL to requests for reasonable accommodations based on a qualified disability, but is expanded to include accommodation requests for: (a) victims of domestic violence, sex offenses, or stalking; (b) pregnancy, childbirth, or a related medical condition; and (c) religious needs.
Importantly, the employer’s responsibility begins when the employer knows or should know that the employee has a condition or status that entitles them to a possible reasonable accommodation, regardless of whether the employee expressly requested an accommodation. As a result, employers have an affirmative obligation to begin the cooperative dialogue process when they learn, either directly or indirectly, that an employee may need an accommodation. In situations where an employee has not sought an accommodation, the employer’s obligation is simply to inquire — without asking about the perceived disability — whether the employee needs any additional support and provide information on the various types of support and reasonable accommodations that are available.
To comply with this new law, employers should revise their policies and procedures to ensure that the company will take the following steps for every accommodation request: (1) respond to accommodation requests within a reasonable time; (2) document the cooperative dialogue process resulting from that request; and (3) provide the employee with a timely written decision.