New York City employers should review existing employee handbooks, reasonable accommodation processes, personal leave rules and forms to ensure compliance with the new bills.

On December 19, 2017, the New York City Council passed two bills, which became law on January 19, 2018, referenced as Introduction Numbers 804-A (Int. 804-A) and 1399-A (Int. 1399-A or the “Fair Work Leave Law”) that impact New York City employers’ obligations regarding handling of employee accommodations, personal leave and schedule change requests.

Int. 804-A amended the New York City Human Rights Law (NYCHRL) to (i) expressly require covered entities to engage in “cooperative dialogue” with individuals who may be entitled to reasonable accommodations under the law, and (ii) expand employer obligations by implementing a written determination requirement any time an accommodation is granted or denied. 

The Fair Work Leave Law amended the New York City Administrative Code and entitles New York City employees to seek schedule changes twice per calendar year, without retaliation, for specified personal events.

History of Int. 804-A

As explained by the City Council’s Committee Report, the bill is intended to legislatively modify the holding of Jacobsen v. New York City Health & Hospitals Corp., 22 N.Y.3d 824, 838 (2014). In Jacobsen, the court held that while refusal to engage in a good faith interactive process is a factor in determining whether a reasonable accommodation was available, the failure to do so was not independently actionable under the NYCHRL. This legislation does not modify the standard for determining what is a reasonable accommodation or undue hardship, but does now make a covered entity’s failure to engage in a cooperative dialogue an independent statutory violation.

NYCHRL Sets Forth Cooperative Dialogue Requirement

Int. 804-A clarifies and reinforces the NYCHRL’s reasonable accommodation requirement by expressly requiring “covered entities”—including employers, providers of public accommodations and providers of housing accommodations—to engage in or seek to engage in a cooperative dialogue with individuals who may be entitled to such accommodation, in order to identify what reasonable accommodations are available to assist them. The term “cooperative dialogue” is the process by which a covered entity and an individual who may be entitled to an accommodation jointly discuss and identify the available and reasonable accommodations for the individual. The NYCHRL did not previously specify the cooperative dialogue process or requirement, only stating that employers had an obligation to provide reasonable accommodations unless they could meet the burden of establishing undue hardship.

The NYCHRL currently requires covered entities to make reasonable accommodations for the following individuals:

1. Victims of domestic violence, sex offenses or stalking;
2. Individuals with pregnancy and related conditions;
3. Individuals with religious needs; and
4. Individuals with disabilities.

The bill provides that “[t]he determination that no reasonable accommodation would enable the person requesting an accommodation to satisfy the essential requisites of a job or enjoy the right or rights in question may only be made after the parties have engaged, or the covered entity has attempted to engage, in a cooperative dialogue.” However, the bill also provides that satisfying the cooperative dialogue requirement is not a defense to having failed to provide a reasonable accommodation where one is otherwise warranted.

The cooperative dialogue requirement under the NYCHRL applies to disabled individuals not necessarily covered by the New York State Human Rights Law (NYSHRL), as well as those with religious needs, domestic violence victims and pregnant employees. The NYSHRL defines “disability” as any impairment that may be identified by medically acceptable diagnostic techniques, and the Americans with Disabilities Act (ADA) defines “disability” as an impairment that substantially limits a major life activity. These definitions are narrower than the NYCHRL’s definition, which defines disability as “any physical, medical, mental or psychological impairment, or a history or record of such impairment.” 

Further, victims of domestic violence are not explicitly covered individuals under applicable federal laws, and while the NYSHRL was amended in 2009 to provide victims of domestic violence with protection from employment discrimination and reasonable accommodation, this protection does not include an explicit requirement to engage in a cooperative dialogue regarding reasonable accommodations for victims of domestic violence, nor does the protection include a written determination requirement. 

In sum, these statutory changes make the NYCHRL even more burdensome for employers to apply than it currently is, relative to Title VII and the NYSHRL. The NYCHRL protects individuals with “religious needs,” a seemingly broader standard than Title VII’s and the NYSHRL’s “sincerely held religious belief” test.  In addition, the undue hardship defense to providing religious accommodation under Title VII requires only a showing that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden, a relatively low bar. By contrast, the undue hardship defense under the NYCHRL (like the NYSHRL), requires employers to establish that it would be a significant difficulty or expense for them to offer any accommodation. Thus, compliance with the NYCHRL continues to be more strenuous for employers than compliance with Title VII or certain aspects of the NYSHRL.  

Since Mayor de Blasio did not sign or veto this bill within 30 days of its passage, it became law as of January 19, 2018, and will become effective 270 days later, on October 16, 2018.

Written Determination Requirement Further Expands NYC Employer Obligations

Int. 804-A requires a covered entity to provide the individual requesting an accommodation with a written final determination identifying any accommodation granted or denied. The covered entity may only make this determination after it has engaged or attempted to engage in the aforementioned cooperative dialogue with the individual seeking the accommodation.

This final written determination requirement expands employer obligations beyond the scope of federal or New York State law, as well as pre-existing New York City law. No previous law has required a New York employer (or other covered entity) to provide a formal written determination to employees (or at-issue individuals) granting or denying them a requested accommodation.

The Fair Work Leave Law

The Fair Work Leave Law entitles New York City employees to seek schedule changes of up to one business day per request, no more than twice per calendar year, for specified personal events. An employer also fulfills its obligation by permitting an employee to use two business days for one request.

“Personal events” pursuant to the law include: caregiver emergency; attendance at a legal proceeding or hearing involving subsistence benefits to which the employee, family member or the employee’s care recipient is a party; or safe or sick time pursuant to New York City’s Earned Sick Time Act. 

Under the bill, employees must notify employers as soon as they become aware of the need for a temporary work schedule change, and must indicate that the need is due to a personal event. The initial request does not need to be in writing, but employees must submit a written request as soon as practicable, and not more than two business days after the employee returns to work following the conclusion of a temporary change to the employee’s work schedule. 

Upon receiving an employee’s initial request, employers must respond immediately; however a written response is not required until 14 days after the employer receives an employee’s written request. If an employee fails to submit the required written request, the employer’s obligation to respond in writing is waived. A written response must include:

• Whether the employer will agree to the temporary change to the work schedule in the manner requested by the employee, or will provide the temporary change to the work schedule as leave without pay, which does not constitute a denial;
• If the employer denies the request for a temporary change to the work schedule, an explanation for the denial; and
• How many requests and how many business days pursuant to this subchapter the employee has left in the calendar year after taking into account the employer’s decision contained in the written response.

An employer may deny the employee’s request only if (i) the employee has already exhausted his or her two requests in the calendar year, or (ii) an exemption applies. The bill provides that it does not apply to any employee who:           

• Is covered by a valid collective bargaining agreement if such agreement waives the provisions of the bill and addresses temporary changes to work schedules;
• Has been employed by the employer for fewer than 120 days;
• Is employed by any employer whose primary business for which that employee works is the development, creation or distribution of theatrical motion pictures, televised motion pictures, television programs or live entertainment presentations, except for an employee whose primary duty is the performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer’s customers and except for an employee whose primary duty is performing routine mental, manual, mechanical or physical work in connection with the care or maintenance of an existing building or location used by the employer; or
• Works fewer than 80 hours in the city in a calendar year.

Any unpaid leave granted for a personal event under this bill does not count toward employer obligations under the Earned Sick Time Act, and leave granted under the Earned Sick Time Act does not count toward employer obligations under this bill.

Int. 1399-A sets forth an administrative penalty of $500, payable to the employee, for each employer violation. However, if an employer fails to provide the required written response, it may cure the violation without penalty by presenting proof that it provided the employee with the required written response within seven days of notification of the opportunity to cure. 

This bill became law on January 19, 2018, and will take effect in 180 days on July 18, 2018.

What This Means for Employers

New York City employers should review existing employee handbooks, reasonable accommodation processes, personal leave rules and forms to ensure compliance with the new bills. Additionally, employers should advise human resources professionals of the new bills’ requirements, specifically (i) the explicit requirements of Int. 804-A for employers to engage in a cooperative dialogue, not only for disability needs, but for all covered categories subject to accommodation obligations, and to prepare and provide a written determination relative to such accommodation needs and requests; and (ii) the requirements of Int. 1399-A for employers to grant an employee’s request for a temporary change to the employee’s work schedule because of a “personal event.” Finally, employers and other covered entities may want to work with outside counsel to craft appropriate written determination responses to individuals when they request accommodations or written responses to employees who request temporary schedule changes because of a personal event.

For Further Information

If you have any questions concerning this Alert, please contact one of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

 

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