United States: New York City To Require Employers And Landlords To Engage In New "Cooperative Dialogue" Process For Requests For Reasonable Accommodations

On January 19, 2018, New York City amended the already expansive and employee-friendly New York City Human Rights Law ("NYCHRL") to impose broad-reaching new requirements concerning the need to provide reasonable accommodation to employees, tenants, and others concerning disability, pregnancy, religion, and other conditions and practices that may require accommodation. Effective July 18, 2018, the law will require employers and providers of public or housing accommodations to engage in a "cooperative dialogue" with individuals who may be entitled to reasonable accommodations for disabilities and other conditions and practices. Although it has long been an employer's best practice to engage in an interactive process when an employee requests an accommodation, this new law now mandates that employers engage in this dialogue in a specific fashion in order to insulate themselves from liability under the NYCHRL's broad reach. The same requirements are imposed on landlords and providers of public accommodations.

The new law provides that it is an unlawful discriminatory practice for an employer "to refuse or otherwise fail to engage in a "cooperative dialogue" within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require such an accommodation." Accommodations include those for religious needs, disability, pregnancy, childbirth or a related medical condition, or the needs of victims of domestic violence, sex offenses, or stalking. Employers should note that the requirement that they engage in a "cooperative dialogue" is triggered not only when an employee requests an accommodation, but also when the employer has "notice" that an accommodation may be required. However, neither the current text of the NYCHRL nor the new law defines "notice." For the time being, it is safe to assume that notice will be liberally interpreted such that it is appropriate to deem any possible indication of an issue that might call for accommodation as giving rise to notice sufficient to trigger the obligation to begin the cooperative dialogue.

As a result of this new law, employers are specifically required to engage in a good faith written or oral conversation with the employee regarding his or her accommodation needs, potential accommodations (including alternatives to a requested accommodation), and the difficulties that such potential accommodations may pose. The employer can only determine that no reasonable accommodation would allow the employee to satisfy the essential requisites of the job after the parties have engaged or attempted to engage in a cooperative dialogue. Once the cooperative dialogue is concluded, employers must provide the employee with a written determination that identifies whether an accommodation is being granted or denied and states the reasons for the decision. Thus, informal verbal communications will no longer be sufficient to fulfill the duty to engage in the interactive process required to determine whether a reasonable accommodation can be achieved. 

These new requirements are also applicable to landlords and providers of public accommodations, including business owners of all types. Landlords will be required to engage in the same "cooperative dialogue" process when tenants request accommodations, including modifications to specific tenant units or common areas, or to various building rules, such as permitting a service or emotional support animal in a "no pets" building. Likewise, owners of businesses with stores will now be required to engage in cooperative dialogue with patrons or prospective patrons in order to provide equal access to those affected individuals.

Put simply, this new amendment creates dramatically expansive new obligations on employers, landlords, and providers of public accommodations, as it expands a formal written notice accommodation process to new areas such as pregnancy. While the new law does not take effect until July, New York City employers should not delay in taking proactive measures to ensure compliance. In particular, employers, landlords, and business owners should:

  • Review and revise their existing accommodation policies to include a "cooperative dialogue" process, including ensuring that these policies specify that a written determination on any accommodation request will be delivered;
  • Identify potential needs for accommodation in order to comply with the law's directive that accommodation should be provided when the employer has notice of the need therefor; and
  • Train managers, supervisors, human resource professionals, and decision makers on how to engage in a "cooperative dialogue" and remind them of the requirement that they prepare a written determination in each instance.

The New York employment lawyers of Lewis Brisbois are available to assist with compliance with respect to this new amendment to the NYCHRL and the myriad of other employment laws and regulations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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