As of October 15, 2018, all New York City employers are now required to engage in a “cooperative dialogue” when an employee requests a reasonable accommodation, whether for disability-related, religious or any other reason covered under the Americans With Disabilities Act (ADA). The employer will be required to document the process.
Under the NYCHRL, reasonable accommodations, such as workplace rule changes and unpaid leave, must generally be provided to employees for any ADA covered reasons. The recent amendment expands upon this existing requirement, and requires employers to engage in a “cooperative dialogue” with an employee who requests a reasonable accommodation: (1) for religious needs; (2) due to a 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. This is similar to already existing “interactive process” requirements commonly applied to disability accommodations.
The new amendment now explicitly requires such dialogues by law for all covered reasons found within the NYCHRL. Employers are specifically required to engage in a good faith written or oral conversation with the employee regarding the employee’s accommodation needs, potential accommodations (including alternatives to the accommodation proposed by the employee), and any difficulties that the proposed accommodations could pose for the employer. At the conclusion of this cooperative dialogue, the employer must provide the employee with a written final determination identifying any accommodation that was granted or denied.
That last part, involving required written determinations, is likely to be the most difficult issue from an administrative standpoint. While documenting accommodation requests is already a best practice, this amendment makes such documentation mandatory. Now, failure to provide a written determination will potentially constitute grounds for an unlawful discrimination finding. Moreover, it is unclear if this written determination requirement would apply to all accommodations, including the littlest and most mundane of accommodations granted in the workplace. For example, would a written determination be required for a request to attend a doctor’s appointment, to leave early for a migraine, or to take a religious holiday? Most likely the answer is “yes” as of now, and any failure to provide a determination could result in liability under the law. Employers should update their employee handbooks and leave policies accordingly, and begin training managers and human resources professionals to comply with these newest legal requirements in New York City.