Seyfarth Synopsis: On January 19, 2018, the New York City passed a law requiring that businesses engage in "cooperative dialogue" with individuals with disabilities and in other protected categories in the context of employment, housing and public accommodations.
The New York City Council recently amended the New York City Human Rights Law to expressly require that a broad cross section of businesses dialogue with individuals with disabilities and others regarding their accommodation needs. Specifically, housing providers, employers, and public accommodations must comply with a specific protocol for evaluating requests for accommodations by individuals with disabilities. While generally consistent with the requirement that employers engage in the "interactive process" under Title I of the Americans with Disabilities Act ("ADA"), the scope of the new law, which will take effect on October 15, 2018, is broader than existing federal requirements.
The "Cooperative Dialogue" Obligation
Here are the key components of the amendment:
- The new law applies to "covered entities," which include housing providers (i.e. owners, landlords, and cooperative and condominium boards), employers, and places of public accommodation (i.e. retailers and other public-facing businesses).
- The amendment makes it an "unlawful discriminatory practice" for a covered entity to fail to engage in the "cooperative dialogue," which refers to a written or oral dialogue concerning an individual's accommodation needs, the individual's requested accommodation and potential alternatives, and difficulties that potential accommodations may pose for the business.
- The cooperative dialogue requirement is not only triggered by requests for accommodation, but also when the covered entity is considered on notice of an individual's need for an accommodation.
- The determination must be made within a "reasonable time" (the statute does not provide any definition or other guidance as to what qualifies as "reasonable").
- Significantly, employers and housing providers (not public accommodations) must provide a written final determination identifying any accommodation granted or denied.
What The Amendment Means For Businesses
Housing providers must engage in the cooperative dialogue with unit owners, co-op shareholders, tenants, and other residents with disabilities, and issue a written decision. Although it is a best practice to memorialize these communications, some housing providers may not be accustomed to issuing written determinations in every case. These issues arise, for example, when residents have service or emotional support animals in "no pet" multi-family buildings, or where residents with mobility disabilities request alteration of common areas. The requirement of a timely written determination, and issues concerning when a housing provider is on "notice" of the need for a potential accommodation, are additional reasons why housing providers should confer with experienced counsel in addressing these issues.
Under the amendment, employers are required to engage in the cooperative dialogue with individuals seeking disability-related accommodations, religious accommodations, pregnancy-related accommodations, and accommodations for victims of domestic violence, sex offenses, or stalking. The amendment underscores the need to train managerial and human resource employees to respond appropriately to accommodation requests, including by identifying potential accommodations, interfacing effectively with employees, and memorializing the determination.
Places of Public Accommodation
This category consists of public-facing businesses, including, for example, retailers, hotels, theaters, restaurants, and educational institutions. The ADA already requires that businesses make "reasonable modifications" to their policies, practices and procedures to facilitate access for patrons with disabilities. Moreover, for certain specific accommodations (such as allowing individuals with service animals to enter premises that prohibit animals), federal regulations and regulatory guidance set forth specific protocols for businesses to evaluate these requests. The interplay between the new law and existing federal requirements under Title III of the ADA is not entirely clear at this early stage.
This is an opportune time for businesses to revisit their policies, practices, and procedures, as well as employee training programs, to ensure that they have a sufficient process in place for evaluating accommodation requests.
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