The New York City Council amended its NYC Human Rights Law (NYCHRL) to include a provision that, effective Oct. 15. 2018, requires covered entities including employers and public accommodations to engage in cooperative dialogue with individuals who have a disability and may require an accommodation.
A reasonable accommodation under the NYCHRL may be required for an individual for religious needs, pregnancy, childbirth, or related medical condition, a disability, or the needs of victims of domestic violence, sex offenses, or stalking.
The term “cooperative dialogue” as defined under the law means the process by which a covered entity and a 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.
The dialogue does not have to take place in person, but can also be conducted in writing, by phone, or via electronic means such as email or Skype. A good-faith dialogue ends when the accommodation can be granted or:
- The employer arrives at the conclusion that there is no accommodation available that will not cause undue hardship;
- The individual does not accept the reasonable alternative identified, or;
- No accommodation exists
It is required to continue until one of these conclusions is reached. At this point, the employer must provide a written notice that identifies any accommodation that was granted or denied.
What employers need to know
Covered entities, including employers, must initiate a cooperative dialogue in a timely manner after the requested accommodation. An indeterminate delay of requested dialogue for accommodation may have the same effect as an outright denial in the eyes of the Guidance.
The NYC Commission on Human Rights recently released Guidance on the responsibilities of covered entities regarding the prevention of disability discrimination that references the law on cooperative dialogue in nearly every section. Such frequency of its mention could be an indicator of aggressive enforcement by the Commission. The guide, “Legal Enforcement Guidance on Discrimination on the Basis of Disability”, which includes hypothetical scenarios, may be helpful for covered entities in understanding the basics of engaging in cooperative dialogue under the law.
One example provided in the guidance concerned an employee who exhausted his maximum number of weeks under the Family Medical Leave Act but required more days off due to a disability. In this scenario, the employer must engage in a cooperative dialogue to determine if more time off is a reasonable accommodation or an undue hardship for the business.
This example provides what’s at the core of a cooperative dialogue: an evaluation by the employer of the individual’s needs and potential accommodations that would enable them to execute the responsibilities of the job without creating undue hardship for the employer.
Additionally, the law is clear that it is not solely up to the employee to request a cooperative dialogue to make a request for accommodation. If an employer witnesses or has knowledge of a decline in an employee’s performance at work and has a reasonable idea that it could be related to a disability, it is the employer’s responsibility to initiate a cooperative dialogue. However, the employer, by law, can’t ask whether an employee has a disability but, rather, can offer reasonable accommodations to assist in doing the job or offer information on available support.
What actions should employers take
The guide offers best practices employers should consider implementing; first among them is to notify employees of their rights to be free from discrimination based on disability or other circumstances. Employers with employees working in New York City can update employee handbooks to reflect the language used in the law and to inform employees who to contact within the company to request an accommodation.
Another best practice is for covered entities to have a written policy that they disseminate to all employees.
Additionally, employers are encouraged to consult with legal counsel to assist in applying the new requirements of the amended law to specific employee situations.