The New York City Council voted last month to amend the New York City Human Rights Law ("NYCHRL") to explicitly require that covered entities engage in "cooperative dialogue" with those persons who may be entitled to a reasonable accommodation. Int. No. 804-A.
On Friday, because the Mayor had failed to take action within thirty days of its passage, the amendment aged into law. There is a nine-month delay, however, before it will take effect.
The NYCHRL, one of the most comprehensive and expansive local anti-discrimination laws in the nation, has long required that covered employers make reasonable accommodations for victims of domestic violence, individuals with pregnancy and related conditions, religious needs, and disabilities, so long as these accommodations would not impose an "undue hardship" on the covered entity. N.Y. Admin Code § 8-107 et seq. Until now, the NYCHRL did not expressly require an employer to engage in any particular process in response to an employee's request for an accommodation.
As amended, the NYCHRL:
- Makes it "an unlawful discriminatory practice" for covered entities not to "engage in good faith in a written or oral dialogue [about the needs]" of persons who may be entitled to an accommodation. Int. No. 804-A.
- Requires that "[u]pon reaching a final determination at the conclusion of a cooperative dialogue," covered entities must provide "a written final determination [to the person requesting an accommodation] identifying any accommodation granted or denied." Id.
- Ensures that "[t]he determination that no reasonable accommodation would enable the person requesting an accommodation to satisfy the essential requisites of a job or enjoy the right or rights in question may only be made after the parties have engaged, or the covered entity has attempted to engage, in a cooperative dialogue." Id.
Notably, these amendments override how New York State courts have previously interpreted the NYCHRL and depart in some important respects from the federal Americans with Disabilities Act ("ADA").
Regulations and interpretive guidance, as well as judicial opinions, have generally recognized a responsibility for employers governed by the ADA to engage in an "interactive process" with employees who request accommodations. Nevertheless, the ADA does not elaborate what exact steps employers must take as part of the interactive process, and the federal courts remain divided on whether failure to initiate the interactive process is itself a "per se" violation of the ADA. In contrast, this amendment to the NYCHRL explicitly requires that employers engage with employees and lays out specific procedural conditions for how to do so.
New York City employers – even those familiar with the "interactive process" of the ADA – should consider, then, how the NYCHRL's new "cooperative dialogue" amendments will affect them, and they should review their employee policies to ensure that they are compliant.
As always, Proskauer's labor and employment team stands ready to assist.
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