New York City Human Rights Law Amendment Concerning Reasonable AccommodationsLaw Requires “Cooperative Dialogue” Between Employers and Employees and Documentation of Final Determinations October 16, 2018
As of October 15, 2018, the New York City Human Rights Law (“NYCHRL”) began requiring employers to engage in a cooperative dialogue with any job applicant or employee who asks for a reasonable accommodation on the basis of disability, religion, pregnancy, or because the employee is a victim of domestic violence, sexual violence, or stalking. As amended, the NYCHRL also now requires employers to make a written determination of what accommodation, if any, can be offered.
It is now an unlawful discriminatory practice under the NYCHRL for an employer “to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation” on the basis of disability, religion, pregnancy, or because the individual is a victim of domestic violence, a sexual offense, or stalking. “Cooperative dialogue” is defined as the process by which an employer and an employee who may be entitled to reasonable accommodation “engage in good faith in a written or oral dialogue” about the employee’s accommodation needs. According to written guidance issued by the New York City Commission on Human Rights (the “Commission”), the dialogue “involves an evaluation of the individual’s needs and consideration of the possible accommodations for the individual that would allow them to perform the essential requisites of the job . . . without creating an undue hardship” for the employer. The guidance provides examples of what the Commission considers sufficient dialogue.
According to the guidance, if an applicant or employee declines a proposed accommodation as insufficient to meet his or her needs, the employer should continue to work with the applicant or employee to determine if an alternative accommodation would suffice. If an accommodation the applicant or employee proposes is not feasible, the employer should suggest other potential accommodations that would address the applicant or employee’s needs, as well as explain any difficulties the employer would face in providing such accommodations.
After engaging in the dialogue, the employer must promptly inform the applicant or employee in writing of its decision to grant or deny the accommodation request. This final written determination identifying any accommodations the employer has granted or denied is key to complying with the NYCHRL, and a failure to provide a written determination of the cooperative dialogue constitutes an independent violation of the NYCHRL.
In determining whether an employer has satisfied its obligation to cooperate, the Commission has stated that it will consider, among other things, whether the employer has a policy informing employees how to request an accommodation, whether the employer timely responded to the request in light of the urgency and reasonableness of the request, and whether the employer sought to delay the cooperative dialogue or in any way attempted to deter the individual from requesting an accommodation.
The amendment is available at https://www1.nyc.gov/assets/cchr/downloads/pdf/amendments/Int.%20No.%20804-A.pdf.
The guidance is available at https://www1.nyc.gov/assets/cchr/downloads/pdf/NYCCHR_LegalGuide-DisabilityFinal.pdf.