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THE NEW YORK CITY HUMAN RIGHTS LAW REQUIRES EMPLOYERS TO ENGAGE IN A COOPERATIVE DIALOGUE WHEN EMPLOYEES REQUEST ACCOMMODATIONS

The New York City Human Rights Law has been amended to require employers to engage in a “cooperative dialogue” when an employee requests an accommodation pertaining to religious beliefs, disability, pregnancy, childbirth or related condition, or because the employee was a victim of domestic violence, sexual violence or stalking.

The bill amending the New York City Human Rights Law was not signed by Mayor Bill de Blasio. The bill was returned to the City Council unsigned. Based on a provision of the New York City legislative procedure, not signing the bill has the effect of a signature.

The law therefore became effective two weeks ago, on October 15, 2018.

The law does not expand the circumstances in which an employer must provide accommodations to its employees. However, it has altered the procedures which employers need to adhere to, once an employee has submitted an accommodation request.

The amendment requires employers to “engage in good faith in written or oral dialogue” regarding an employee’s requested accommodation. If the employer cannot satisfy the employee’s requested accommodation, then it is required to discuss the difficulties that the request would pose for the employer and to suggest potential alternatives that may address the employee’s accommodation needs. These “good faith” verbal or written discussions must continue until either the request for an accommodation is granted or not.

Once the cooperative dialogue concludes, the amendment requires employers to reduce to writing, whether the accommodation has been granted or denied. The employers must provide a copy of this document to the employee who requested the accommodation, or to the employee’s representative who requested the accommodation on the employee’s behalf. Employers are prohibited from determining that no reasonable accommodation exists that would enable the person to perform the essential job duties unless the employers have first engaged, or attempted to engage, in a cooperative dialogue with the employee (or the employee’s representative).

The failure to engage in this “good faith” cooperative dialogue, on its own, is a violation of the New York City Human Rights law. The amendment also provides that a failure to furnish a written determination of the cooperative dialogue is an independent violation of the New York City Human Rights Law.

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