A recent amendment to the New York City Human Rights Law that requires employers to respond to reasonable accommodation requests from employees in writing likely comes as good news to many, including the nearly 1 million New York City residents—about 11 percent—who, according to the Mayor’s Office for People With Disabilities, are living with disabilities.

Local Law No. 59, which went into effect October 15, 2018, clarifies the reasonable accommodation requirement by requiring covered entities—specifically, employers with four or more workers—to “engage in or seek to engage in a cooperative dialogue with individuals who may be entitled to such accommodation, in order to identify what reasonable accommodations are available to assist them.” (Emphasis added)

In addition to people with disabilities, the law applies to requests for accommodations related to religious needs, pregnancy, childbirth or a related medical condition and needs related to victims of domestic violence, sex offenses or stalking. The amendment also applies to providers of public accommodations and housing accommodations.

Cooperative dialogue
As stated in the Human Rights Law, “cooperative dialogue” means “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.”

The cooperative dialogue also must address potential accommodations that may provide for the individual’s accommodation needs, including alternatives to a requested accommodation, and the difficulties that such potential accommodations could pose for the covered entity.

Reasonable accommodation
“Reasonable accommodation” means that the accommodation can be made without causing undue hardship to the employer’s business. According to the Human Rights Law, in determining whether a request will cause undue hardship, employers should consider:

• the nature and cost of the accommodation;
• the overall financial resources involved in the provision of the reasonable accommodation, including the number of people employed, the effect on expenses and resources and the impact the accommodation would place on the business operations;
• the overall financial resources, including the size of the business, number of employees and number of, type, and location of its facilities; and
• the type of operations of the business, including the composition, structure, and functions of the workforce.

Policies and procedures
Employers with employees in New York City should ensure that they have updated policies and procedures in place to comply with the new law, including procedures for responding to employees’ requests for reasonable accommodations. Notices of employees’ rights should be posted and employees should be made aware of how to make a reasonable accommodation request.

Violation of the Human Rights Law could result in civil penalties up to $125,000, according to the Title 8 of the Administrative Code of the City of New York. Where it is found that an unlawful discriminatory practice was the result of the employer’s “willful, wanton or malicious act” or where an act of “discriminatory harassment or violence has occurred,” a civil penalty of up to $250,000 may be imposed, the Code states.

The law appears to place equal significance, and liability, on the process of responding to accommodation requests as it does the decision to grant or deny the accommodation. Further, the specific requirements are more stringent than those normally required under federal law under the Americans with Disabilities Act (ADA). Nonetheless, employers can subject themselves to liability under both city and federal law if they are not careful.

The bottom line: Employers should remember that all accommodation requests require specific action, including cooperative dialogue with employees and written, final determinations.

It is important that employers with employees in New York City review the new law and work quickly to comply with the regulations. An employment law attorney can assist with ensuring the proper policies and procedures are in place.