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More than a Reasonable Accommodation: The New York City Human Rights Law’s Protections for Workers with Disabilities

Posted October 7th, 2020 by in Employment Discrimination.

Many Americans are familiar with the formulation “reasonable accommodation,” which the Americans with Disabilities Act (ADA) requires employers to make on for employees who have a disability. The ADA is a federal law. Less well known is that New York City has its own counterpart law that protects employees with disabilities. The New York City Human Rights Law’s requires that employers engage in a “cooperative dialogue” as soon as the employer knows that some accommodation “may be necessary.” This goes substantially beyond the requirements of the ADA and applies in a broader range of situations.

What is a “cooperative dialogue”?

The NYCHRL defines a cooperative dialogue as:

the process by which a covered entity and a person entitled to an accommodation, or 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; potential accommodations that may address the person’s accommodation needs, including alternatives to a requested accommodation; and the difficulties that such potential accommodations may pose for the covered entity.

In other words, a cooperative dialogue is a conversation between employee and employer about the employee’s needs and the potential accommodations the employer can offer.

When is a “cooperative dialogue” required?

An employer is required to engage in a cooperative “within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require such an accommodation.”

The second consideration, here is key: if the employer “has notice” that a person “may require” an accommodation, then the employer still has to engage in the dialogue even if the employee has not requested it. That is, the employer must begin the conversation even if the employee has not requested it.

What is the result of a “cooperative dialogue”?

The NYCHRL says that “[u]pon reaching a final determination at the conclusion of a cooperative dialogue . . . the covered entity shall provide any person requesting an accommodation who participated in the cooperative dialogue with a written final determination identifying any accommodation granted or denied.” This requirement is critical: Cooperative dialogue doesn’t mean an informal conversation with no concrete resolution; it must conclude with a written determination from the employer.

And to reiterate that point, the law says 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.” In other words, the employer can’t just skip over the cooperative dialogue based on a belief that the dialogue would be futile.

What is a reasonable accommodation under the NYCHRL?

Courts have repeatedly held that the NYCHRL goes beyond its federal counterparts, such as the ADA. This includes in the realm of reasonable accommodations. Thus any accommodation that is reasonable under federal law will also be reasonable under the NYCHRL—and then some.

Disability discrimination in the workplace can be remedied, and employees can bring a lawsuit in New York to remedy any discrimination they may have experienced. Employees who believe they may have been denied a cooperative dialogue should contact a New York employment attorney.

Russell Kornblith is the New York Managing Partner who works on both qui tam / whistleblower cases and on discrimination cases.
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