New York City Human Rights Law Amended to Mandate “Cooperative Dialogue” with Employees Seeking an Accommodation

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On January 19, 2018, New York enacted an amendment to the New York City Human Rights Law (“NYCHRL”) mandating that covered employers engage in “cooperative dialogue” with employees who may be entitled to a reasonable accommodation.  This law applies to all New York City employers with four or more employees.  Once effective, employers cannot “refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time” with a person who requests an accommodation: 1) for religious needs; 2) related to disability; 3) as a result of pregnancy, childbirth or a related medical condition; or 4) as a result of domestic violence, sex offenses or stalking.  Furthermore, employers cannot reach a final determination about whether an accommodation will be granted or denied until the parties have engaged in, or the employer has attempted to engage in, a cooperative dialogue.

Under the federal Americans with Disabilities Act (ADA), once an employer becomes aware of the need for an accommodation, that employer has a mandatory obligation to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations.  That process requires bilateral cooperation and communication and requires both the employer and the employee to engage in that process “in good faith.”   Nevertheless, the ADA does not delineate the steps an employer should take as part of the interactive process.

Far too often, the interactive process is fraught with complications when an employee fails to participate in the interactive process by not responding to an employer’s request for information about the alleged restrictions or insisting on a single accommodation that may be unreasonable as a matter of law.  Further complicating this process are situations in which an employer must prove that the requested accommodation imposes an undue hardship.

Currently, the NYCHRL does not expressly require an employer to engage in any particular process in response to an employee’s request for an accommodation.  As amended, however, the NYCHRL will:

• Consider it an unlawful discriminatory practice for an employer to not engage in good faith in written or oral dialogue with an employee who may be entitled to an accommodation.
• Require an employer to provide the individual requesting an accommodation with a written final determination identifying any accommodation that has been granted or denied.
• Mandate that “the 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 may only be made after the parties have engaged, or the covered entity has attempted to engage, in a cooperative dialogue.” No. 804-A

These requirements are a departure from decisions of New York state courts previously interpreting the NYCHRL and differ in key respects from the federal Americans with Disabilities Act (ADA).  Most notably, the ADA does not set out the exact steps that an employer must take as part of the interactive process and federal courts are split on an employer’s obligations during the interactive process under the ADA.  By contrast, this amendment to the NYCHRL explicitly requires such dialogues and outlines specific ways for satisfying the requirement.  Failure to comply may potentially result in an unlawful discrimination finding.

The amendment takes effect on October 15, 2018, which gives employers eight months to consider how the new “cooperative dialogue” amendment will affect them and to review their employee policies to ensure that they are compliant.   To help ensure compliance, employers covered by the NYCHRL should review and, if necessary, revise their interactive process protocol to ensure 1) that this process occurs for all covered reasons found within the NYCHRL, 2) that the process is well documented, and 3) that a written final determination is provided to the employee.