A spate of new state and local regulations is making it tougher to be an employer in the City That Never Sleeps. As previously covered by HR Legalist, new requirements for sexual harassment policies went into effect across New York State on October 9, 2018, and burdensome new requirements for harassment-related training will go into effect statewide on October 9, 2019. In addition, New York City employers must comply with the Stop Sexual Harassment Act, which includes its own training requirements, beginning in April 2019.
If that wasn’t enough to keep employers in The Big Apple busy, a new amendment to the NYC Human Rights Law (NYCHRL), effective October 15, 2018, adds new requirements for how employers must respond when employees request workplace accommodations. The new rule requires employers to engage in a “cooperative dialogue” with employees who request accommodations, similar to the “interactive process” required under federal law (including the Americans with Disabilities Act). However, NYC’s requirements significantly expand on the ADA’s requirements.
Reasons for Workplace Accommodations
The NYC Human Rights Law requires that employers with four or more employees provide reasonable accommodations not just for employees with disabilities, but also for religious needs, as a result of pregnancy, childbirth or a related medical condition, or as a result of domestic violence, sex offenses or stalking.
The new requirements are triggered whenever an employee requests an accommodation for any of the above reasons; or, if a covered employer has notice that the employee may require such an accommodation. In other words, once an employer knows that an employee is having job-related difficulties attributable to any of the categories above, that employer must start the cooperative dialogue, even if the employee does not ask for an accommodation.
What is a “Cooperative Dialogue”?
Employers and employees should discuss the employee’s limitations (i.e., specifically what he or she can and cannot do as a result of the disability or other issue), the employee’s suggested accommodation(s) to address those limitations, and any alternative accommodations that may also be effective to meet the employee’s needs. The dialog can be written or verbal.
Documentation Requirements
It is good practice for employers to document the interactive process in the event it is later called into question. However, the NYC law also requires employers to provide the requesting employee with a written final determination identifying any accommodation that was granted or denied. This documentation requirement goes well beyond the ADA and former NYCHRL requirements, and is likely to be broadly interpreted. Employers must train managers and human resources professionals to document all determinations pertaining to accommodations. Anything from approval of leave for a single doctor’s appointment, to long-term leave and everything in between should be documented.
The NYC Human Rights Law does not require employers to provide accommodations that would cause undue hardship due to cost or the nature of the business. However, employers have the burden of proving undue hardship. Under the new amendment, employers cannot determine that no reasonable accommodation exists without first engaging in a cooperative dialog and providing the required written determination.
Penalties and Best Practices
Violations of the NYCHRL can result in administrative charges or lawsuits. Remedies include compensatory and punitive damages, as well as civil penalties of up to $125,000 per violation or up to $250,000 for a willful violation, and attorneys’ fees in the event of a successful lawsuit.
To ensure compliance with this new regulation, New York City employers should update their reasonable accommodations policies and procedures and train their managers and human resources staff on the required processes.
