NYC Employers Must Adopt new Protocol for Assessing Reasonable Accommodations in the Workplace
According to a new amendment to New York City Human Rights Law (NYCHRL) that goes into effect Oct. 15, 2018, NYC employers must engage in cooperative dialogue and issue a written determination every time an employee requests a reasonable accommodation in the workplace.
Under the new law, employers with four or more employees have an obligation to engage in cooperative dialogue to assess reasonable accommodations for: (1) religious needs; (2) disabilities; (3) pregnancy, child birth or related medical condition; or (4) victims of domestic violence, sex offenses or stalking. Employers who fail to follow the cooperative dialogue process can be held liable for disability discrimination under the NYCHRL.
In this context, "cooperative dialogue" means that an employer engages in a good faith dialogue with its employee concerning: (1) the employee's known or potential accommodation needs; (2) accommodations that may address that employee’s needs, including alternatives to the requested accommodation; and (3) the difficulties that such accommodation may pose for the employer. Employers must go through the cooperative dialogue process if they knew, or should have known about the employee's disability, even where the employee did not request an accommodation.
For example, if an employee has exhausted all of his FMLA leave due to a serious back injury, but he requests three weeks of additional leave due to a related disability, the employer must engage in a cooperative dialogue with the employee to determine if additional leave is a reasonable accommodation, or whether the additional leave would pose an undue hardship on the employer's business. Similarly, if an employer has a reasonable belief that an employee's work product has diminished due to an unreported disability, the employer should engage in cooperative dialogue by asking the employee if there is any support it can provide, including reasonable accommodations, to enable the employee to perform the essential functions of his or her job.
Importantly, once the employer completes the cooperative dialogue process and makes a determination about the accommodation request, it must provide a written final determination to the person requesting the accommodation stating whether the accommodation has been granted or denied.
To avoid liability under this statute, employers should update their policies to reflect these new obligations and train all decision makers on the cooperative dialogue process. Employers should also ensure that they are promptly responding to accommodation requests and recording all decisions in writing for the employee.
Employers with questions about cooperative dialogue or compliance with the NYCHRL should contact the author or a Saul Ewing Arnstein & Lehr employment law attorney for assistance.