Can We Talk? Guidance on NYC’s New Cooperative Dialogue Requirements

Earlier this year, the City of New York Amended the New York City Human Rights Law to Require Employers to Engage in Cooperative Dialogue

Earlier this year, the City of New York amended the New York City Human Rights Law (NYCHRL) to require employers to engage in a cooperative dialogue with individuals who may be entitled to a reasonable accommodation under the statute. The new requirements take effect on October 15, 2018. In advance of the effective date of the new law, New York City Commission on Human Rights (Commission) recently issued guidance regarding employer compliance, particularly with respect to disability discrimination.

Reasonable Accommodations Under NYCHRL

The NYCHRL currently requires the entities that it covers to make reasonable accommodations for victims of domestic violence, individuals with pregnancy and related conditions, religious needs, and disabilities. The new law (Int. No 804-A) clarifies the reasonable accommodation requirement by expressly requiring covered entities to engage in or seek to engage in a “cooperative dialogue” with individuals who may be entitled to such accommodation, in order to identify what reasonable accommodations are available to assist them.

The law defines “cooperative dialogue” as the “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.” It applies to employers, providers of public accommodations, and providers of housing accommodations.

New Requirements for NYC Employers

Under the amendments to the NYCHRL, it will be 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,” with respect to:

• Religious needs;
• Disability;
• Pregnancy, childbirth, or a related medical condition; or
• Needs related to being a victim of domestic violence, sex offenses, or stalking

Upon reaching a final determination at the conclusion of a cooperative dialogue, the covered entity must provide a written final determination identifying whether the accommodation is granted or denied. Int. No 804-A further provides that the determination that no reasonable accommodation would enable the person requesting an accommodation to satisfy the essential requisites of a job may only be made after the parties have engaged, or the covered entity has attempted to engage, in a cooperative dialogue.

Commission’s New Guidance on Cooperative Dialogue

New York City employers have understandably raised a lot of questions regarding what the cooperative dialogue must entail. According to the guidance, the dialogue may be in person, in writing, by phone, or via electronic means. If an employer does not have enough information to understand the individual’s needs to offer an appropriate accommodation, it may ask for additional information about the specific impairment.

The Commission emphasizes that employers must “communicate in good faith with the individual requesting an accommodation in a transparent and expeditious manner, particularly given the time-sensitive nature of many of these requests.” In evaluating whether or not an employer has engaged in a cooperative dialogue in good faith with an individual who requests an accommodation, the Commission will consider various factors, including, without limitation:

• Whether the covered entity has a policy informing employees, residents, or customers how to request accommodations based on disability;
• Whether the covered entity responded to the request in a timely manner in light of the urgency and reasonableness of the request; and
• Whether the covered entity sought to obstruct or delay the cooperative dialogue or in any way intimidate or deter the individual from requesting the accommodation.

The guidance further advises that a cooperative dialogue is ongoing until one of the following occurs: (1) a reasonable accommodation is granted; or (2) the employer reasonably arrives at the conclusion that: (a) there is no accommodation available that will not cause an undue hardship to the employer; (b) a reasonable accommodation was identified that meets the individual’s needs but the individual did not accept it and no reasonable alternative was identified during the cooperative dialogue; or (c) in the case of an employer, that no accommodation exists that will allow the employee to perform the essential requisites of the job.

Next Steps for NYC Employers

The Commission strongly recommends that New York City employers incorporate information on the new disability accommodation requirements and procedures into their employee handbooks. As the compliance deadline for the new employment law approaches, NYC employers should review their existing accommodation policies and procedures to determine if revisions are needed. In many cases, changes will be necessary, particularly with regard to the new “cooperative dialogue” obligations.

If you have any questions, contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Sean Dias, or the Scarinci Hollenbeck attorney with whom you work at 201-806-3364.