In the past year, both New York State and New York City have been active in amending their human rights laws. Most notably, both the city and state passed comprehensive anti-sexual harassment laws that require most employers to distribute anti-sexual harassment policies and to conduct annual anti-sexual harassment training of all employees. While these harassment laws have attracted much attention, the New York City Council passed a bill on December 19, 2017 that has flown under the radar even though it will have profound consequences for employers that operate in New York City.
A new law amends the New York City Human Rights Law to require most employers to engage in a “cooperative dialogue” when an employee requests an accommodation related to his or her religious beliefs, disability, pregnancy, childbirth or related condition, or because the employee was a victim of domestic violence, sexual violence or stalking. Curiously, Mayor de Blasio never signed the bill into law, but rather returned the bill to the City Council unsigned. By a quirk of the New York City procedural law, failing to sign the bill has the effect of a signature. The law therefore becomes effective on October 15, 2018.
The law does not expand the circumstances in which an employer must provide accommodations to employees. But it does change procedures in which employers need to apply when confronted with a request for accommodation. Specifically, the law obliges employers to “engage in good faith in written or oral dialogue” to discuss an employee’s requested accommodation needs. If the employer cannot satisfy the employee’s requested accommodation, then it is required to discuss the difficulties that the request would pose for the employer and to suggest potential alternatives that may address the person’s accommodation needs. These “good faith” verbal or written discussions are required to continue until either the request for an accommodation can be granted or denied. Once the cooperative dialogue is complete, the law requires employers to memorialize in writing whether any accommodation has been granted or denied. The employer must provide a copy of this report to the employee who requested the accommodation, or to the employee’s surrogate who requested the accommodation. Employers are prohibited from determining that no reasonable accommodation exists that would enable the person to perform the essential job duties unless the employer has engaged, or attempted to engage, in a cooperative dialogue with the employee (or the employee’s surrogate).
Importantly, the law makes failing to engage in this “good faith” cooperative dialogue a stand-alone violation of the New York City Human Rights law. Likewise, the law also provides that a failure to provide written determination of the cooperative dialogue also constitutes an independent violation of the New York City Human Rights Law.
New York City employers are encouraged to update their reasonable accommodation policies and to establish a standard procedure for addressing requests for accommodations in writing. Human resource managers should also be trained in the proper method of engaging in a good faith dialogue and in preparing written responses to requests for accommodations.