Workplace Accommodations: New York City Law Requires Cooperative Dialogue

By Danielle Thompson and Christopher Collins © Sheppard Mullin August 9, 2018
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As of Oct. 15, New York City employers with four or more employees will be required to engage in a "cooperative dialogue" with a person who may be entitled to a workplace accommodation. The cooperative dialogue resembles the "interactive process" that most employers are familiar with under the Americans with Disabilities Act, but the city's law applies to more than disability-related accommodations and, importantly, requires employers to document the cooperative dialogue process. We have prepared this short Q&A to help employers understand their obligations under the new law.

What triggers the obligation?

  • The employee requests an accommodation.
  • The employer is on notice that the employee may require an accommodation (e.g., need for accommodation is apparent; request is made by a surrogate).

What types of accommodation requests are subject to the new requirements?

  • Religious accommodations.
  • Disability accommodations.
  • Accommodations related to pregnancy, childbirth and related medical conditions.
  • Accommodations for the needs of a victim of domestic violence, sex offenses or stalking.

What constitutes a cooperative dialogue?

  • Written or oral communications concerning:
  • The employee's accommodation needs.
  • Potential accommodations that may address those needs (including alternatives).
  • Any difficulties the potential accommodations may pose for employer.

What documentation is required?

  • An employer must provide the employee with a "written final determination identifying any accommodation granted or denied."
  • A determination that there is no reasonable accommodation that will enable the employee to satisfy essential requisites of their job may only be made after engaging in a cooperative dialogue and must be put in writing to the employee.

What are the risks of noncompliance?

  • Failure to engage in a cooperative dialogue (including the documentation obligation) is an unlawful discriminatory practice under the New York City Human Rights Law.
  • Employees can file administrative charges with the New York City Commission on Human Rights or a lawsuit. The commission itself can also initiate a "commissioner's charge."
  • Remedies include compensatory, punitive, equitable and injunctive relief, as well as civil penalties (up to $125,000 per violation and up to $250,000 for a violation that is willful, wanton or malicious) and/or attorneys' fees in a lawsuit.

How can employers best prepare?

  • Update reasonable accommodation policies.
  • Consider establishing—and communicating to employees—a standard procedure for requesting accommodations.
  • Consider establishing a standard procedure for responding to accommodation requests in writing.
  • Train HR and managers on the cooperative dialogue obligation and requesting/responding procedures and document the training to reduce risk of civil penalties. HR and managers should understand that all accommodation requests now require a written response.

Danielle Thompson and Christopher Collins are attorneys with Sheppard Mullin in New York City. © 2018 Sheppard Mullin. All rights reserved. Reposted with permission. 

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