Beginning October 15, 2018, employers covered by the New York City Human Rights Law (“CHRL”) must engage in “cooperative dialogue” with individuals who are or may be entitled to reasonable accommodations. Bill Int. No. 804-A, enacted January 19, 2018, amends the CHRL to include the additional requirement of “cooperative dialogue” when assessing whether a person may be entitled to a reasonable accommodation in, among other contexts, the workplace. The cooperative dialogue process is analogous to the “interactive process” adopted in disability discrimination cases under the Americans with Disabilities Act; however, the amendment expands the obligation to those individuals seeking accommodation for religious needs, for pregnancy, childbirth, or a related medical condition, and as a victim of domestic violence, sex offenses or stalking. Moreover, this new law creates a separate cause of action for failure to engage in cooperative dialogue with an individual who has requested an accommodation, or who has provided the entity notice that he or she may require an accommodation – even if no reasonable accommodation exists.
What is Cooperative Dialogue?
Section 8-102 of the amendment defines the term “cooperative dialogue” as
the process by which a covered entity and person entitled to an accommodation, or who may be entitled to an accommodation under the law, engage in good faith in a written or oral dialogue concerning the person’s accommodation needs; potential accommodations that may address the person’s accommodation needs, including alternatives to a requested accommodation; and the difficulties that such potential accommodations may pose for the covered entity.
This general description was supplemented by guidelines issued by the New York City Commission on Human Rights (“CCHR”) in June 2018 (“Guidelines”). Although the Guidelines are specific to issues relating to disability, they offer clarity as to the cooperative dialogue process overall, which can be applied to all of the categories for which this obligation will now apply:
- Initiating a Cooperative Dialogue: The amended CHRL requires the employer to begin the process by opening a discussion, which assesses the particular needs of the individual. In the employment context, a cooperative dialogue evaluates an employee’s needs in determining a possible reasonable accommodation that would allow them to perform the essential functions of the job, without creating an undue hardship for the employer. The CHRL also imposes a duty on the entity when it should have known about the individual’s disability (or, presumably, any other covered protected status), even if the individual had never requested an accommodation. In commencing the cooperative dialogue, the employer should open the conversation by inviting the individual to comfortably make a request, if they have not done so already. If an individual chooses not to disclose their protected status and need for accommodation to the entity, the entity has met its burden to initiate a cooperative dialogue and nothing further needs to be accomplished.
- Engaging in a Cooperative Dialogue: The cooperative dialogue should be made in good faith and conducted in a “transparent” and “expeditious” manner. The dialogue can occur in person, in writing, by phone or electronically. In its evaluation of whether an employer engaged in cooperative dialogue in good faith, the CCHR will consider multiple factors, including but not limited to:
- Whether the entity has a policy for informing individuals on the process to request an accommodation;
- The timeliness of the response to the request in light of the nature of the request, i.e., how urgent and/or reasonable the request is; and
- Whether the entity sought to obstruct or cause delay to the cooperative dialogue, or otherwise deter the individual from requesting the accommodation. If an entity indeterminately delays its response to a request, it will have the same effect as an outright denial for an accommodation.
- Concluding the Cooperative Dialogue: The cooperative dialogue is ongoing until: (1) the reasonable accommodation is granted; or (2) the entity reasonably concludes that there is no accommodation available because (a) of undue hardship, (b) a reasonable accommodation was established, but the individual rejected it, or (c) no accommodation exists that will enable the employee to perform the essential requisites of the position. Importantly, at the conclusion of the cooperative dialogue, the employer must issue a final written determination identifying each accommodation contemplated and whether or not each accommodation was granted. Employers also have a continuing obligation to engage in the cooperative dialogue process, as an individual may make new requests for accommodations over time. Any new requests must follow the same procedure from the start.
In light of these recent and impending legal changes, all New York City covered employers should review and revise all existing policies and handbooks to insure compliance with the cooperative dialogue requirements. Specifically, policies and procedures should provide the individual notice by including the process by which an individual can request an accommodation, define cooperative dialogue, set forth the needs covered, and outline the final determination requirement. Moreover, employers should train staff on the cooperative dialogue process in addressing a covered person’s individualized needs within a reasonable time and the necessity of drafting a proper final, written determination.
The Guidelines attach several sample documents in an appendix to assist entities in the reasonable accommodation analysis and determination. The full Guidelines, with these documents attached at the end, can be found here and include:
- A step-by-step summary for employers to reference regarding cooperative dialogue requirements;
- Sample Reasonable Accommodation Request Form;
- Sample Grant or Denial of Reasonable Accommodation Request Form; and
- Sample Letter to Employee on Leave.