Employers covered by the New York City Human Rights Law (HRL) must engage in a “cooperative dialogue” with persons who may be entitled to reasonable accommodations under the HRL beginning October 15, 2018.
This “cooperative dialogue” requirement is the result of a bill (Int. No. 804-A) passed December 19, 2017, by the New York City Council. It became law on January 19, 2018, after Mayor de Blasio failed to take action within 30 days of passage by the New York City Council.
Importantly, the new law creates a separate cause of action against covered entities that “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.” The HRL requires covered entities to make reasonable accommodations for the following:
Victims of domestic violence, sex offenses or stalking;
Pregnancy, childbirth or a related medical condition;
Religious needs; and
“Cooperative dialogue” is defined under the law as a “process by which a covered entity and a person entitled to an accommodation, or who may be entitled to an accommodation under the law, engage in good faith in a written or oral dialogue concerning the person’s accommodation needs; potential accommodations that may address the person’s accommodation needs, including alternatives to a requested accommodation; and the difficulties that such potential accommodations may pose for the covered entity.”
Significantly, after the parties have engaged in the cooperative dialogue process, the law requires the covered entity to provide the person requesting an accommodation a final written determination identifying any accommodation granted or denied.
The New York City Commission on Human Rights recently released legal enforcement guidance on disability discrimination that contains information on how a covered entity complies with this accommodation obligation in the context of individuals with disabilities. For example, the guidance states, “the dialogue may be in person, in writing, by phone, or via electronic means.” It also includes factors the Commission will consider in determining whether a covered entity has engaged in good faith with the individual.
New York City employers need to prepare now to meet the new legislation’s significant expansion of reasonable accommodations. Employers should examine their reasonable accommodations protocols, including any relevant policies and practices, to ensure they cover not only the expanded circumstances where cooperative dialogues are required, but the fairly expansive issues that should be addressed as part of that dialogue.
Employers also should examine their operational ability to ensure this dialogue takes place within a “reasonable time” and to provide written responses once they conclude a “cooperative dialogue.”
While many covered employers have established protocols for handling accommodation issues, they need to realize that the new legislation imposes significantly greater burdens to develop and implement processes to ensure a cooperative dialogue occurs and is documented for every accommodation request, even those that might be unreasonable on their face. In effect, the new law makes the process of responding to disability-related reasonable accommodation requests as important as the decision to grant or deny accommodations.