NYC “Cooperative Dialogue” Amendment
Are you Cooperating?
New York City’s New “Cooperative Dialogue” Amendment is in Effect October 15, 2018. This amendment to the NYC Human Rights Law requires New York City employers with four or more employees to engage in a “cooperative dialogue” with employees who may be entitled to a workplace accommodation.
This new cooperative dialogue requirement obligates employers to do the following:
- Engage in a good faith written or oral dialogue concerning the employee’s accommodation needs.
- Discuss the potential accommodations that may address the employee’s accommodation needs, including alternatives to a requested accommodation.
- Discuss the difficulties that such potential accommodations may pose for the employer.
This may sound similar to the interactive process required under the Americans with Disabilities Act (ADA), but important differences in the NYC law as compared to the New York State Human Rights Law and the ADA include:
- The employer’s obligation to engage in a cooperative dialogue is triggered not only when an individual’s disability is known, but also when the covered entity “should have known” about the individual’s disability, regardless of whether the individual requested an accommodation.
- Once the cooperative dialogue is complete, employers are required to provide the employee with a written determination of whether any accommodation will be granted or denied.
- Employers may not determine that no reasonable accommodation exists unless the employer has engaged, or attempted to engage, in a cooperative dialogue with the employee.
The cooperative dialogue process also applies to accommodations related to an employee’s religious beliefs, pregnancy, childbirth or related medical condition, or status as a victim of domestic violence, sexual violence or stalking.
One of the more challenging pieces of this amendment may be in understanding under what circumstances an employer “should have known” about the individual’s disability and how employers can safely comply with this provision. To provide guidance on this point, the NYC Commission on Human Rights explains that when an employer has a reasonable basis to believe that a job performance issue is the result of a disability, the employer should not ask the employee if the employee has a disability.
Rather, the employer should take the following steps:
- Initiate the cooperative dialogue by asking if there is anything going on that the employer can help with;
- Inform the employee that various types of support are available, including reasonable accommodations, to enable the employee to satisfy the essential requirements of the job; and
- Remind the employee of the workplace policies and procedures for requesting a reasonable accommodation.
If the employee chooses not to disclose that he/she has a disability in that conversation, the employer has met its obligation to initiate a cooperative dialogue and no further action is required on the employer’s part.
The risks of non-compliance with this law are significant and include:
- Failure to engage in a cooperative dialogue and failure to provide a written final determination to the employee are both independent violations under the New York City Human Rights Law.
- An employee can either file administrative charges with the New York City Commission on Human Rights or a lawsuit in state court, or the Commission can initiate a “commissioner’s charge.”
Remedies include compensatory, punitive, equitable and injunctive relief, as well as civil penalties (up to $125,000 per violation and up to $250,000 for a willful violation) and/or attorneys’ fees in a lawsuit.
What can you do as a NYC employer to ensure that you are in compliance with this new legal requirement?
- Work with your HR professional and legal counsel to review and revise current reasonable accommodation policies and procedures to ensure compliance with the new cooperative dialogue requirements.
- Consider developing a standardized process and format for providing written responses to requests for accommodations.
- Ensure that your managers are aware of the new requirements and are trained on the proper method of engaging in a good faith dialogue, avoiding disability discrimination in their actions and communications, and how to document written responses at the conclusion of the cooperative dialogue process.
Do you have questions regarding the new “cooperative dialogue” amendment process for NYC employers or need assistance updating your current reasonable accommodation policy or employee handbook?