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NYC Employers: Got Cooperative Dialogue? You Must!

If you are an employer in New York City, the words “cooperative dialogue” should now be at the top of your mind any time you discuss accommodations under the Americans with Disabilities Act (ADA).  The ADA is a civil rights law that prohibits discrimination against individuals with disabilities and requires employers to provide reasonable accommodations to qualified applicants or employees who suffer from a disability.  Employers must engage in what is called the “interactive process” with an applicant or employee to determine what a reasonable accommodation would be in order to meet the individual’s needs.  Now New York City has jumped on this band wagon. 

Effective October 15, 2018, employers in New York City are required to engage in a “cooperative dialogue” with employees who request a reasonable accommodation.  While the interactive process required by the ADA and cooperative dialogue required by NYC law are similar, they are not identical. 

The New York City Commission on Human Rights recently released guidance further elaborating its position on this new law.   It can be found here: https://www1.nyc.gov/assets/cchr/downloads/pdf/NYCCHR_LegalGuide-DisabilityFinal.pdf  The guidance makes clear the NYC law is intended to be an expansion of the ADA.  Therefore, the cooperative dialogue process and the employer’s obligations are more extensive than that under the ADA. 

What is a Cooperative Dialogue?

The guidance explains a “cooperative dialogue” is the process by which the employer and individual who requests an accommodation engage in a good faith written or oral dialogue concerning the person’s accommodation needs.

For employers, this duty exists not only when the disability is known but also when it should have been known.  For instance, the guidance suggests if a top-notch performer suddenly turns into the worst employee going, the employer should question whether an accommodation is needed.   (But, this must be done without inquiring about a disability.  Instead, the employer must merely ask if there is a reason for the decline.  If nothing is offered, the conversation is over.)  Failure to engage in this cooperative dialogue is a violation of the law even if there is no reasonable accommodation available to the employee. 

Can I get a Doctor’s Note?

When engaging in this cooperative dialogue, the employer is not required to provide the specific accommodation requested as long as it proposes an alternative that meets the specific needs of the individual.  An employer can request medical documentation that 1) is sufficient to substantiate the requester has a disability, 2) identifies the functional limitation resulting from the disability, and 3) explains the need for the requested accommodation.  The employer, however, cannot request information regarding specifics of the diagnosis unless the information is needed to determine the accommodation needed.  This information must be kept confidential.  

When Does the Cooperative Dialogue End?

A cooperative dialogue is not perpetual.  It ends once (1) a reasonable accommodation is granted; or (2) the employer determines (a) there is no accommodation that will not cause an undue hardship to the covered entity, (b) the Company identified a reasonable accommodation that meets the employee or applicant’s needs but it is rejected by the individual; or (c) no accommodation exists that will allow the employee or applicant to perform the essential functions of the job. 

Under the New York City law, employers are required to provide a written final determination to the individual identifying any accommodation granted or denied.  This written documentation is not required under the ADA, but internal documentation of the process is a best practice for employers. 

Employers in NYC should review and revise their accommodation policies to comply with this new law.  Employers should also tread lightly as this law is more protective of employees than the ADA.  For instance, while indefinite leave has been considered an unreasonable accommodation under the ADA, the NYC guidance makes clear indefinite leave is not automatically an unreasonable accommodation.  If you are confronted in NYC about this issue, you should contact competent labor and employment counsel to navigate the complications of complying with local, state, and federal leave laws.

Brody and Associates regularly provides counsel on leave laws, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.