Apparently believing that employers are not capable of considering employees’ requests for reasonable accommodation on their own, the New York City Council has decided to dictate how those requests should be handled. An amendment to the New York City Human Rights Law, which takes effect on October 15, 2018, obligates employers to engage in a “cooperative dialogue” with an employee who might need a reasonable accommodation:
- for religious needs;
- relating to a disability;
- relating to pregnancy, childbirth or a related medical condition; and
- for a person’s needs as a victim of domestic violence, sex offenses or stalking.
According to the amendment, the cooperative dialogue requires employers to, in good faith, engage in a written or oral dialogue concerning
- the person’s accommodation needs;
- potential accommodations that may address the person’s accommodation needs, including alternatives; and
- difficulties that such potential accommodations may pose for the employer.
To be fair, employers should be doing these things anyway as a matter of best practices. For example, the Equal Employment Opportunity Commission states that the reasonable accommodation process entails an interactive dialogue between employers and employees. The New York City Human Rights Law amendment basically goes further and sets the terms of that dialogue. Furthermore, the amendment requires employers in New York City to state in writing their final determination on the accommodation request, regardless of whether or not the accommodation is approved. Failure to do any of these things, even if the accommodation is granted, is considered an unlawful discriminatory practice. So much for no harm, no foul.
Although the amendment does not go into effect until October 15, 2018, it is critical that employers begin reviewing their reasonable accommodations policies and practices now to ensure that they comply with this new mandate. Soon a company’s actual administrative handling of reasonable accommodation requests will be guided not by best practices, but by law.