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Paul Zimmerman

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Employee Accommodations: Now a Mandatory Topic of Conversation in NYC

The hurdles for employers in New York City continue to line up. The latest legal mandate: compliance with local accommodations law.

Beginning October 15, 2018, NYC employers with four or more employees will be required to engage in and document a good faith written or oral dialogue concerning (1) their employees’ accommodations needs, (2) potential accommodations that may address those needs (including proposed alternatives), and (3) any difficulties potential accommodations may pose for the employer. The types of accommodations contemplated under the so-called “cooperative dialogue law” are those relating to an employee’s religion; disability; pregnancy, childbirth or other related medical conditions; or the needs of a victim of domestic violence, sex offenses and stalking.

No doubt, the accommodations ordinance – part of the New York City Human Rights Law – follows an ongoing trend of greater protections afforded to employees. And how are the new compliance requirements triggered? Two ways: (1) when an employee requests accommodations, or (2) when an employer is on notice that an employee may require accommodations. The second trigger occurs if an employee’s need for accommodations is apparent; if that need is conveyed by a third-party; or if the employee’s work or workplace behavior change in such a way that the employer has a reasonable basis to believe the issue is related to a disability (or other protected status). In the event any of these circumstances apply, the law imposes on the employer a duty to provide accommodations whether the need is known or should have been known, even if not explicitly requested by the employee.  

Unlike the Americans with Disabilities Act and applicable state law, pursuant to which employers have the option, under limited circumstances, to not engage in an interactive process with employees regarding accommodations, the new law requires employees to participate in cooperative dialogue about the need for accommodations without exception. In fact, a determination that no reasonable accommodations are possible that would allow an employee to satisfy essential requisites of the job may only be made after conducting and documenting a cooperative dialogue. There is more. Under the new law, record-keeping obligations for employers are kicked up a notch. For example, after receiving or learning about an accommodations request, an employer must provide the employee with a final determination, in writing, that specifically identifies accommodations granted or denied.

The good news is that the NYC Commission on Human Rights has providedhelpful guidancefor engaging in a cooperative dialogue, especially when an employee has not directly requested accommodations. In such a case, the Commission suggests the following do’s and don’ts for employers:

  • Don’t ask the employee if he/she has a disability (or other protected-status concerns);
  • Do ask the employee if there is anything going on that the employer can help with;
  • Do inform the employee that various types of support are available to him/her, including reasonable accommodations that can made to enable the employee to satisfy the essential requisites of the job; and
  • Do remind the employee of the applicable workplace policies and procedures for requesting reasonable accommodations.

The Commission further advises employers to approach the dialogue in a way that invites the employee to feel comfortable making an accommodations request. 

Significantly, if an employee chooses not to disclose the need for accommodations (e.g., the fact he/she has a disability) during the dialogue, the employer nevertheless meets its legal obligation of initiating a cooperative dialogue so long as the conversation has taken place. As such, that the employer should (and must) meticulously document, in writing, that the dialogue occurred cannot be overstated. Parenthetically, an employee’s failure to reveal the need for accommodations during an initial conversation does not waive his/her right to seek them (and revisit the cooperative dialogue process) again at a later time.

The penalties for failing to abide by the cooperative dialogue law are steep. Such a failure is considered an unlawful discriminatory practice and exposes an infringing employer to civil penalties up to $125,000 per violation (up to $250,000 for willful violations) and possible attorneys’ fees should a lawsuit be filed. The takeaway: NYC employers should move quickly to update their reasonable accommodations policies and consider establishing procedures for employees to make, and employers to respond to, accommodations requests.

This blog post is not offered, and should not be relied upon, as legal advice. You should consult an attorney for advice in specific situations.