Psst…did you know it was Disability Awareness Month?
Well, it is! And, in honor of that, I bring you a new law affecting most New York City employers, at least those with more than four employees. The law applies to all of your employees, whether full- or part-time, interns (paid or unpaid), temps, and protects more NYC employees than those with disabilities.
This week, an amendment to the New York City Administrative Code became effective, requiring employers covered by the New York City Human Rights Law (NYCHRL) to engage in a good faith “cooperative dialogue” with employees seeking accommodations in the workplace, and to document the results of that dialogue in writing.
The law imposes a written requirement on NYC employers dealing with accommodation issues for disabilities and other protected classes. This writing requirements really holds HR’s feet to the fire. Let’s face it, these conversations are aw-kward. They’re not fun. No one wants to have them. But we must. And, we must document everything so that it is memorialized for all time—or at least through an Equal Employment Opportunity Commission (EEOC) investigation, should one ensue.
So what classes does the new law apply to?
Under the NYCHRL, employers must provide “reasonable accommodations” to employees requesting accommodations related to:
Pregnancy, childbirth or a related medical condition
Needs as a victim of domestic violence, sex offenses or stalking
Religious needs
It’s not just a reasonable accommodation for a disability, but for other classes protected under the NYCHRL as well. Accommodations are considered “reasonable” if they do not cause an undue hardship for the employer’s business, i.e., a major difficulty or expense based on the employer’s resources and circumstances or those that would completely change the operation of the business.
Wait, isn’t this the same as the ADA?
Not exactly. Like the Americans with Disabilities Act (ADA), you’ll need to talk (or email or text – though I don’t recommend text) to the employee about his or her accommodation needs, potential accommodations for those needs (including alternatives, so many of which you can find on JAN’s website), and any problems that the proposed accommodations could impose upon the employer.
So what’s the difference between this amendment and the ADA? First, it imposes this requirement upon companies when faced with religious, pregnancy, and DV accommodations and not just requests for accommodations due to a “disability.” A reminder of what constitutes a disability: a physical or mental health impairment that substantially limits one or more major life activities.
Remember: one in five adults in the U.S. suffer from some type of mental health impairment, according to the National Alliance on Mental Illness. That’s more than 40 million people.
Second, while the “cooperative dialogue” is similar to the “interactive process” that employers must engage in under the ADA, the writing requirement is a whole different megilla. Unlike the ADA, at the conclusion of the cooperative dialogue, the employer must provide the employee with a final written determination identifying any accommodation it granted or denied. The law specifies that a determination that no reasonable accommodation is available cannot be made until after the parties have engaged, or the employer has attempted to engage, in the cooperative dialogue.
Additionally, not mentioned in the amendment to the NYCHRL, but a good reminder—engaging in the cooperative dialogue or the ADA’s interactive process is not a “one and done” event, but an ongoing obligation, as I wrote about here.
While documenting the interactive process is something we’ve advised as a best practice (here) and helpful in a defense to a charge of discriminaton filed with the EEOC or the NYCHRC, an employer’s failure to document its engagement in a cooperative dialogue is itself considered an unlawful discriminatory practice under the NYCHRL, which could subject employers to liability for compensatory damages, as well as punitive damages, attorney’s fees, and costs.
Employer Takeaway
This is huge. Huge! Employers want to document EACH STEP in the process – in contemporaneous notes, email, etc. — of any verbal conversation; then advise the employee of the decision, in writing.
Do not run afoul of this law. The NYCHRC means business.