In October 2018, an amendment to the New York City Human Rights Law (NYCHRL), which requires all New York City employers with four or more employees to engage in a “cooperative dialogue” with individuals who may be entitled to various workplace accommodations, went into effect. The new city law requires employers to “engage in good faith in a written or oral dialogue” regarding the person's need for accommodation. This system is similar to the “interactive process” structure required under the Americans with Disabilities Act (ADA) and New York State Human Rights Law. With that similarity in mind, how much does the cooperative dialogue change the way New York City employers deal with accommodation requests and what must City employers know about the new law?

Interactive Process Under the ADA

The ADA is a civil rights law that protects individuals with disabilities, including prohibiting employers from discriminating against disabled persons in the workplace. Under the ADA, employers are urged to engage in a “informal, interactive process” with any employee who requests a disability accommodation. 29 C.F.R. §1630.2(o)(3). This procedure is referred to as the interactive process. The purpose of the interactive process is to encourage employers and employees to work together to determine whether an employee's disability can be reasonably accommodated. This informal dialogue between the employer and employee can be entirely verbal and an employer only needs to demonstrate a good faith effort to provide the employee with a reasonable accommodation to comply with the law. Porter v. City of New York, 128 A.D.3d 448 (1st Dep't 2015).

Further, an employer's duty to engage in the interactive process only exists if there is evidence that a reasonable accommodation exists. Noll v. IBM, 787 F.3d 89 (2d Cir. 2015). Therefore, even if the employer does not engage the employee requesting an accommodation in good faith, if there is no evidence that an accommodation is possible, an employer does not violate the ADA for failing to engage in the interactive process. Id. Likewise, an employer is not liable for failing to explore any alternative accommodations proposed by the employee when the accommodation provided was reasonable. Id.

New Cooperative Dialogue Requirements

Under the new NYCHRL law, New York City employers with four or more employees are required to make reasonable accommodations for employees who request an accommodation related to: (1) disability; (2) religious beliefs; (3) pregnancy, childbirth or related medical conditions; or (4) being a victim of domestic violence, sex offenses or stalking. The four categories of accommodations covered by the cooperative dialogue law differ from the ADA's interactive process, which only requires a dialogue for disability accommodation requests. The additional types of accommodations are included in the City law because religion, pregnancy and domestic violence status are protected characteristics under NYCHRL. Thus, New York City employers must be aware of, and engage in a good faith dialogue with employees who request an accommodation covered under the new law.

While the cooperative dialogue requirements are similar to the ADA interactive process, the law formalizes the procedure which employers must follow when an employee requests an accommodation. The law defines a “cooperative dialogue” 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 accommodations 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. 2018 N.Y.C. Local Law No. 59.

The good faith written or oral discussions are required to continue until the employer grants or denies the accommodation request. Under the ADA, conversations and determinations regarding requested accommodations can be entirely verbal and require no documentation. However, upon completion of the cooperative dialogue, the new law requires employers to create a written report containing a determination of whether the accommodation has been approved or denied. The report must either grant the employee a reasonable accommodation, or conclude that (1) no accommodation can be made without an undue hardship to the employer; (2) a reasonable accommodation was offered to the employee, but rejected by the employee; or (3) no accommodation exists that will allow the employee to perform the essential duties of the job. If an employer denies the request, it must give the reason for denial in the report. The employer needs to provide a copy of the report to the employee. Employers may not deny an accommodation unless the employer has engaged, or attempted to engage, in a good faith cooperative dialogue with the employee.

Another difference between the interactive process and the cooperative dialogue is that under the NYCHRL, every accommodation request must result in a conversation between the employer and employee, even if the request is unreasonable. In contrast, the Second Circuit held that employers are not required to engage employees in the interactive process where a reasonable accommodation does not exist. Noll v. IBM, 787 F.3d 89 (2d Cir. 2015).

Cooperative Dialogue Case Study

The following is an example of the cooperative dialogue process from the accommodation request stage through the employer's decision. A pregnant employee in her third trimester works for an employer in New York City in a position that requires her to stand on her feet for long periods of time. The employee has exhausted her paid sick leave and does not wish to go on unpaid leave. The employee notifies her employer that she would like an accommodation that would either allow her frequent rest breaks or provide her with the ability to sit while performing her job. Under the ADA, the employer would have no obligation to engage in the interactive process with the employee, because pregnancy accommodations are not covered under the ADA. However, the cooperative dialogue law would require the employer to engage in a good faith dialogue with the employee to determine a reasonable accommodation.

After considering the employee's request, the employer decides that providing the employee with frequent rest breaks is not an undue hardship and is more convenient than offering a seating arrangement due to the duties of the job. In order to maintain a record of the cooperative dialogue, the employer confirms the accommodation in an email with the employee. In addition, the employer memorializes the communication in writing, stating that the employee's accommodation was approved, and provides a copy to the employee to conclude the cooperative dialogue. By providing the employee with a written report of the accommodation decision, the employer has satisfied its obligations under the cooperative dialogue law.

Conclusion

While most employers have protocols for handling accommodation requests and were aware of the obligations under the ADA's interactive process, the cooperative dialogue law imposes greater burdens on covered NYC employers. These employers must now ensure a cooperative dialogue occurs between the employer and employee when an accommodation request is made, even if the request is unreasonable. The new law states employers who “refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time” with an employee who requests an accommodation will risk a possible human rights charge. Under NYCHRL, there is no limit on compensatory damages that can be assessed for a human rights violation. In addition, attorney fees and punitive damages are available for human rights violations under NYCHRL.

Jules Halpern and Paul Scrom are partners at Jules Halpern Advisors, LLC, a boutique employment law firm representing management in compliance matters, as well as creating innovative workplace strategies.