The New York City Council voted last month to amend the New York City Human Rights Law (“NYCHRL”) to mandate that covered entities engage in “cooperative dialogue” with those persons who may be entitled to a reasonable accommodation.

On January 19, 2018, because the Mayor 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 on October 15, 2018.

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 requires employers to 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.

Follow Proskauer’s Law and the Workplace blog for further developments on these issues.

Photo of Evandro Gigante Evandro Gigante

Evandro is the go-to employment litigator and counselor when clients face their most challenging, bet the reputation claims, or want to develop policies and practices that mitigate legal risk. As an award-winning partner in the Labor & Employment Law Department, member of the…

Evandro is the go-to employment litigator and counselor when clients face their most challenging, bet the reputation claims, or want to develop policies and practices that mitigate legal risk. As an award-winning partner in the Labor & Employment Law Department, member of the Employment Litigation group, and co-head of the Counseling, Training & Pay Equity group, he represents clients on a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. In addition, Evandro handles restrictive covenant matters, including non-compete, non-solicitation and trade secret disputes. Evandro also counsels employers through the most sensitive employment issues, including matters involving employer diversity, equity and inclusion initiatives.

With a focus on discrimination and harassment claims, Evandro has extensive experience defending clients before federal and state courts. He tries cases before juries and arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions. Evandro often draws on his extensive litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful anti-discrimination and harassment training, as well as robust employment policies.

Working in a wide range of industries, Evandro has experience representing clients in professional services, including law firms, financial services, including private equity and hedge funds, higher education, sports, media, retail, and others. Evandro also advises charter schools and other not-for-profit organizations on labor and employment matters on a pro bono basis.