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Accommodation Requests & “Cooperative Dialogue” – New Administrative Requirements for NYC Employers

In our June 2018 Client Alert, we outlined sweeping changes to New York City’s Human Rights Law (“NYCHRL”), designed to address growing concerns about sexual harassment in the workplace. Last month, additional amendments to the NYCHRL went into effect, subjecting New York City employers to new obligations with regard to employees that require (or may require accommodations) in the workplace.

On October 15, 2018, amendments went into effect requiring that all employers engage in a defined “cooperative dialogue” with any employee that is “entitled to an accommodation” or “may be entitled to an accommodation.” The City Council in so doing brought the NYCHRL in line with the federal Americans with Disabilities Act which requires an employer to engage in an “interactive process” to determine the needs of a particular employee, and the extent to which the employer would be able to accommodate them. In defining “cooperative dialogue,” the law provides that it can be an oral or written dialogue, but that it must represent a good faith discussion of:

  1. the employee’s needs;
  2. potential accommodations that may address those needs;
  3.  alternatives to any requested accommodations; and
  4. the difficulties that the accommodation may pose to the employer.

The new law creates an affirmative duty for all New York City employers to engage in the cooperative dialogue “within a reasonable time” of an employee requesting an accommodation or the employer noticing the employee may require an accommodation. This obligation applies to accommodations for disabilities, religious purposes, pregnancy-related conditions, or for needs related to being a victim of domestic violence, sexual offenses, or stalking.

Importantly, and unlike federal law, the NYC law requires a “written final determination” be issued by the employer, following the cooperative dialogue. The determination must be provided to any individual requesting the accommodation, if they participated in the cooperative dialogue, and must identify any accommodations granted or denied. An employer violates the NYCHRL if they issue an ultimate determination that a reasonable accommodation is not possible, without engaging in the dialogue or attempting to engage in the dialogue.

Employer Tips

New York City based employers of all sizes need to adjust their policies and internal responses to accommodation requests in order to comply with the new requirements under the law, and be prepared, with assistance of counsel, to issue written determinations that comply with both local and federal obligations. Training of managers should also take into account these new requirements as managers are often the first to know of an employee’s need for an accommodation.

© Copyright 2019 Sills Cummis & Gross P.C.

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David I. Rosen, Sills Cummis Gross, Wrongful Dismissal Lawyer, Labor Arbitration Attorney
Member

David I. Rosen has practiced labor and employment law on behalf of management clients since 1977. He handles employment litigation in the federal and state courts, before administrative agencies and through arbitration and mediation, and has broad experience with wrongful dismissal and employment discrimination claims, having successfully defended employers following jury and bench trials. His litigation experience extends to the enforcement and defense of restrictive covenants, NLRB unfair labor practice trials and appellate advocacy. Mr. Rosen also represents employers in labor...

(973) 643-5558
Galit Kierkut, Employment Litigation Attorney, Sills Cummis Gross, Social Media Matters Lawyer
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Galit Kierkut concentrates her practice on employment litigation and counseling. She conducts human resources audits, performs management and employee training in all areas, including sexual harassment, social media and electronic communications use, and counsels clients regarding compliance with state and federal employment laws, including discrimination laws, the Fair Labor Standards Act (FLSA), family and medical leave, and the Worker Adjustment and Retraining Notification (WARN) Act. She also reviews and drafts employee handbooks, social media policies and employment contracts, including restrictive covenants and severance agreements. Her employment litigation practice is primarily focused on resolving claims in the areas of discrimination, sexual harassment, restrictive covenants, whistleblowing and employment contract disputes in state and federal courts and before the Department of Labor and the Equal Employment Opportunity Commission (EEOC).

973-643-5896
Charles Kaplan, Sills Cummis Gross, Labor Employment Attorney, Affirmative Action Matters Lawyer
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Charles H. Kaplan is a Member of the Sills Cummis & Gross Employment and Labor Practice Group and is resident in the Firm’s New York Office.  Mr. Kaplan represents employers in federal and state trial and appellate courts, as well as before enforcement agencies, including the U.S. Equal Employment Opportunity Commission, the National Labor Relations Board, the Office of Federal Contract Compliance Programs of the U.S. Department of Labor, the New York State Division of Human Rights, the New York State Department of Labor and the New York City Commission on Human Rights.

Mr....

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Philip Portantino, Sills Cummis Law Firm, Newark, Labor and Employment Law Attorney
Associate

Philip A. Portantino is an Associate in the Sills Cummis & Gross Employment and Labor Practice Group.

Mr. Portantino represents and counsels employers in all areas of employment law. His litigation experience in state and federal court covers a broad range of matters, including discrimination, sexual harassment, whistleblower status, retaliation, employment agreements, restrictive covenant and trade secret matters, contract issues, business torts, and wage and hour issues.

Prior to joining the Firm, Mr. Portantino...

973-643-7000