On October 15, 2018, a new amendment to the New York City Human Rights Law regarding employer obligations when responding to an employee's potential need for a reasonable accommodation will go into effect.
The amendment requires employers with four or more employees in New York City to enter into a "cooperative dialogue" with any employee who may be eligible for a "reasonable accommodation" for issues related to (1) disability, (2) pregnancy, childbirth or a related medical condition, (3) religion or (4) the employee's "needs as a victim of domestic violence, sex offenses or stalking." It also requires employers to document in writing the result of any decision to grant or deny an accommodation.
What is "cooperative dialogue"?
Under the amendment, a "cooperative dialogue" is defined as "the process by which [an employer and an employee] 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 [and] 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." Failure to engage in such a cooperative dialogue by any covered employer may now qualify as an unlawful discriminatory practice.
In requiring employers to engage in a cooperative dialogue, the amendment also mandates that:
- such cooperative dialogue occur within a "reasonable time" of (1) an employee's request for a reasonable accommodation or (2) any other notice an employer has that an employee may be entitled to a reasonable accommodation
- an employer may only make a "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" after such cooperative dialogue takes place and
- an employer must render a "final written determination identifying any accommodation granted or denied."
Action steps for employers
Although engaging in an "interactive process" to satisfy disability accommodation obligations is not a foreign concept to most employers, the written documentation requirements and expanded dialogue obligations are noteworthy and significant. So what should employers with operations in New York City do to ensure they follow the letter of this modified law?
- Be proactive: Employers must engage in a cooperative dialogue not only with any employee who affirmatively seeks a reasonable accommodation, but also with any employee who may be entitled to such accommodation where the employer has knowledge of a potential need for an accommodation whether specifically requested by the employee or not. An employer's "notice" of the need for a reasonable accommodation is not defined in the amendment, so employers should train their human resources and supervisory employees to understand that the cooperative dialogue requirement is triggered any time they become reasonably aware of an employee's potential need for accommodation.
- Be mindful: This amendment does not alter in any way an employer's obligation (as required by the federal Americans with Disabilities Act and the New York City (and State) Human Rights Laws) to reasonably accommodate employees in need; the amendment simply mandates the particular processes an employer must follow in coming to the final determination of whether or not to grant an accommodation. Notably, employers should refrain from making a determination as to the reasonability of an accommodation until the cooperative dialogue process is complete.
- Be organized: The amendment requires employers to provide a final written determination of the grant or denial of any accommodation (in addition to requiring the cooperative dialogue to be oral or written). Accordingly, an employer must now ensure that it properly documents the result of any decision concerning a potential reasonable accommodation.