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NYC Employers Must Engage in "Cooperative Dialogue" on Accommodation Requests

As of October 15, 2018, New York City employers are now required to engage in a “cooperative dialogue” when an employee requests a workplace accommodation.  In a development that may have been overshadowed by the New York State sexual harassment prevention law, the New York City Council amended the New York City Human Rights Law (NYCHRL) in December 2017 to institute this requirement. Similar to, but more demanding than the “interactive process” contemplated by the federal Americans with Disabilities Act, this requirement imposes significant new duties on employers in New York City.

What Is A “Cooperative Dialogue”?

The amendment requires all employers covered by the NYCHRL to engage in a “cooperative dialogue” when an employee requests an accommodation related to his or her religious beliefs, disability, pregnancy, childbirth or related condition, or because the employee was a victim of domestic violence, sexual violence or stalking.  While the law does not substantively broaden an employer’s duty to accommodate employees, it does impose new procedural demands on employers that receive a request for accommodation by an employee. Specifically, employers must “engage in good faith in written or oral dialogue” to discuss an employee’s requested accommodation needs.  If the employer determines it cannot meet an employee’s requested accommodation, it must explain to the employee the difficulties that the request would pose for the employer and suggest alternative accommodations that may adequately address the employee’s needs.  These “good faith” discussions – which may be verbal or written – must continue until the employer determines whether it can grant some form of accommodation.

Once the employer and employee have fully engaged in this cooperative dialogue, employers must provide the requesting employee with a final written determination identifying any accommodation that has been granted or denied.  This requirement is the most significant feature of the new law and the aspect that will likely prove most challenging for employers. The law prohibits an employer from concluding that no reasonable accommodation exists unless the employer has first engaged – or made a genuine attempt to engage – in a cooperative dialogue with the employee.

The real kicker, though, is that the amendment provides that it is a standalone violation of the NYCHRL (and therefore creates a separate cause of action) for an employer to fail or refuse to engage in this “good faith” cooperative dialogue. Failure to provide the requesting employee with the written determination at the conclusion of the cooperative dialogue also constitutes a violation of the New York City Human Rights Law and can expose employers to litigation and potential liability.

What Employers Should Do Right Now

  • Employers should update their accommodation policies immediately to reflect their intent to engage in a cooperative dialogue with any employee who requests an accommodation.
  • Employers should establish a procedure to ensure that accommodation requests and determinations on such requests are documented, tracked, and that final written determinations are provided in a timely manner as required under the law.
  • Employers should clearly identify which employees will be responsible for handling accommodation requests, engaging in the cooperative dialogue, and providing written determinations to requesting employees.
  • Employers should train managers and human resources professionals with respect to the “cooperative dialogue” requirements, including documenting accommodation requests and final determinations.  

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