New York City Places Heavier Burden on Employers to Discuss Reasonable Accommodations with Employees

November 27, 2017

Isaac Graff, Esq., Ty Hyderally, Esq., and Chantal Guerriero

The New York City Council recently passed an amendment to the New York City Human Rights Law (“NYCHRL”), NYC Administrative Code § 8-101 et seq., which will place a heavier burden on employers to justify their decisions to either grant or deny employee accommodation requests. The amendment will require employers to engage in an interactive conversation with their employees to discuss reasonable accommodations for their disabilities and to document their final determinations. The amendment will be put into effect shortly once it is signed by Mayor DiBlasio. Although the NYCHRL already requires employees to engage in a good faith discussion with employees requesting reasonable accommodation, the recent amendment significantly increases the burden on employers by requiring them to also provide written documentation of their final determination of whether or not the accommodation request will be granted. This burden will likely cause employers to think more carefully before denying reasonable accommodation requests, since employees will have written evidence of their employer’s denials.

Under the NYCHRL, employers are expected to make a good faith effort to grant their employees’ reasonable accommodation requests, unless such requests would cause an ‘undue hardship’ on the employer. Further, the law explains that “[t]he term “reasonable accommodation” means such accommodation that can be made that shall not cause undue hardship in the conduct of the covered entity’s business. The [employer] shall have the burden of proving undue hardship…” With the addition of the written documentation requirement, it will be considerably more difficult for employers to claim that they denied an accommodation request on a reasonable and proper basis, in bad faith. Rather than relying on circumstantial evidence and oral conversations surrounding the discussion of reasonable accommodation between the employee and employer, employees will now have documentation of their employer’s denial.

Moreover, employers who fail to provide such written notice in addition to engaging in an interactive dialogue with their employees may be found to be in violation of the NYCHRL. Employers will be required to provide written determinations for a variety of accommodation requests related to pregnancy, religious observances, disabilities, and sexual abuse and violence. Once an employee triggers an employer’s obligation by requesting reasonable accommodation, the employer will be required not only to discuss the accommodation in good faith, but to formally justify their determination. For accommodation requests as simple as taking the afternoon off to go to a doctor’s appointment, employers will be required to respond formally to the request.

Courts have examined several factors in determining whether an employer’s denial of an accommodation was reasonable, including the financial status of the employer, the nature and the cost of the accommodation, and the nature of the work that is performed by the employee, the employer, and the company. With the addition of a written final determination requirement, courts may also find unlawful denials when an employer simply fails to follow NYCHRL procedure. This stricter liability should not only deter employers from unlawfully denying accommodation requests, but also provide employees with more reliable legal recourse when their requests are unlawfully denied.

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