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New York City Expands Reasonable Accommodation Response Requirements

Effective July 18, 2018, employers and operators of public accommodations and all housing in New York City must engage in a cooperative dialogue with individuals who may be eligible for an accommodation and provide a final determination of the dialogue to those individuals. Employers and other entities covered by the law should therefore review their reasonable accommodation policies to ensure compliance with the new requirement.

New York City Mayor Bill De Blasio signed into law an ordinance (the Ordinance) on January 19 that was passed by the New York City Council on December 19, 2017, amending the  (NYCHRL) to expand protections for employees seeking a reasonable accommodation. Specifically, the law will require employers and operators of public accommodations and housing to engage in a cooperative dialogue with individuals who may be entitled to a reasonable accommodation and provide those individuals with a final written decision.

The new law makes it illegal for an employer to fail to engage in a “cooperative dialogue” within a reasonable time with either a person who has requested an accommodation or with a person who the employer has notice may require an accommodation, even without that individual specifically requesting such an accommodation. “Cooperative dialogue” is a new term to the NYCHRL and is defined under the Ordinance to mean the process through which an employer and a person who may be entitled to an accommodation under the law engage in good faith in a written or oral dialogue concerning the person’s accommodation needs, including alternatives to the requested accommodation, and the difficulties that any potential accommodations may pose for the employer.

The concept is similar to the “interactive process” that has long been required under disability discrimination law. The new cooperative dialogue process, however, will apply to accommodation requests relating to disability accommodation, religious accommodations, accommodations related to pregnancy or childbirth (including related medical conditions), and accommodations to address needs as a victim of domestic violence, sex offenses, or stalking. The law also requires that owners and operators of public and/or housing accommodations engage in this cooperative dialogue with individuals who use these accommodations, and extends that coverage to franchisors, franchisees, lessors, lessees, and managing agents of these accommodations. Following the conclusion of this dialogue, employers must provide any person requesting an accommodation who participated in the cooperative dialogue with a written final determination identifying any accommodation granted or denied.

Next Steps and Practice Pointers

The new law highlights that employers and operators of public accommodations and all housing must not reject requests for reasonable accommodation without first engaging in a cooperative dialogue. The enactment of the Ordinance provides an excellent opportunity for companies covered by the law to examine their reasonable accommodation policies to ensure compliance with the law. Each policy should, at a minimum, require and define a cooperative dialogue, identify the categories to which the requirement applies, and require a written final resolution be given to the individual requesting the reasonable accommodation. 

Copyright © 2020 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume VIII, Number 37

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About this Author

Douglas Schwarz, Labor, Employment Attorney, Morgan Lewis Law Firm
Partner

Douglas T. Schwarz is a trusted advisor to and advocate for employers in all aspects of labor and employment law.  He litigates in court, arbitration, and administrative proceedings; counsels employers on human resources matters; negotiates and drafts executive employment and separation agreements; advises on labor and employment aspects of corporate transactions, both domestic and cross-border; and conducts internal investigations of employee complaints.  Doug also handles ADA Title III and state law matters involving access of persons with disabilities to public...

212.309.6890
Daniel Kadish, labor and employment lawyer, Morgan Lewis
Associate

Daniel A. Kadish represents and counsels employers facing employment disputes. He litigates complex employment matters, including class and collective actions, before US federal and state trial courts and administrative agencies, the Financial Industry Regulatory Authority (FINRA), and the American Arbitration Association. Daniel works with his clients to defend wage and hour litigation, discrimination, harassment, retaliation, wrongful discharge, and breach of contract claims.

212.309.6328
Kimberley Lunetta, labor and employment lawyer, Morgan Lewis
Associate

Kimberley E. Lunetta has spent her entire legal career advising employers on labor and employment matters and representing employers before US federal and state trial courts, appellate courts, and administrative agencies. Kimberley counsels clients on labor and employment issues including accommodating employee disabilities and medical leave, harassment claims, employee disciplinary issues, termination decisions, and reductions in force. She also advises clients on complying with USERRA, FCRA, and state and local credit and background check laws. Kimberley also assists...

212-309-6656