New Requirements for Memorializing the Interactive Process Under the NYCHRL: Engaging in a Cooperative Dialogue

This week, on Oct. 15, an amendment to the New York City Administrative Code went into effect requiring employers covered by the New York City Human Rights Law (NYCHRL) to engage in a good faith “cooperative dialogue” when evaluating employee requests for accommodations in the workplace, and to document the results of that dialogue in writing. Generally, all employers with four or more employees are covered by the NYCHRL, and all employees who work for such employers in New York City are entitled to the law’s protections, whether full time or part time, interns, temporary workers, or otherwise.

Under the NYCHRL, employers must provide reasonable accommodations to employees requesting accommodations related to: 

• Disability
• Pregnancy, childbirth or a related medical condition
• Needs as a victim of domestic violence, sex offenses or stalking
• Religious needs

Accommodations are considered reasonable if they do not cause an undue hardship for the employer’s business. 

Most employers are already familiar with the obligation under the Americans with Disabilities Act (ADA) to engage in an “interactive process” with employees seeking workplace accommodations due to a disability. The recent amendment to the NYCHRL imposes a similar but more stringent burden on employers to engage in a “cooperative dialogue” with employees requesting any accommodations permitted under the NYCHRL. Like the ADA, the statute directs employers to communicate orally or in writing with the employee regarding (1) the employee’s accommodation needs, (2) potential accommodations (including alternatives to a requested accommodation) and (3) any difficulties the proposed accommodations could pose for the employer.

Unlike in the interactive process mandated by the ADA, at the conclusion of the cooperative dialogue, the employer must provide the employee with a final written determination identifying any accommodation it granted or denied. The statute expressly notes that a determination that no reasonable accommodation is available cannot be made until after the parties have engaged, or the employer has attempted to engage, in a cooperative dialogue. 

Importantly, while employers were always encouraged to document the interactive process as a “best practice,” an employer’s failure to document its engagement in a cooperative dialogue is itself considered an unlawful discriminatory practice under the NYCHRL, which could subject employers to liability for compensatory damages, as well as punitive damages, and attorney’s fees and costs. 

Going forward, employers are encouraged to review their practices to ensure that managers and Human Resources personnel are aware of their obligations to engage in a cooperative dialogue with employees requesting accommodations. While not required under the law, we recommend that each step of that practice be documented in writing, either in a communication between an employer representative and the employee or in notes memorializing an oral conversation. And at the end of the process, the employee must be provided with a written communication concerning the outcome of the accommodation request and the cooperative dialogue. 

If you have any questions or concerns, please contact a member of Kramer Levin’s Employment Department.