New York City’s “cooperative dialogue” law– an amendment to  New York City’s Human Rights Law (“NYCHRL”)– takes effect October 16, 2018.  In anticipation of that development, the New York City Commission on Human Rights (“NYCCHR”) has issued written guidance for covered employers on “best practices” to comply with their legal obligation to reasonably accommodate job applicants and employees with disabilities under NYCHRL.[1]  It also addresses the legal obligations of other covered entities[2] to provide reasonable accommodations.

The guidance is useful in understanding how the NYCCHR is enforcing, and plans to enforce, the law.

NYCCHR Guidance on Reasonable Accommodation

Citing that approximately one million New York City residents live with disabilities (or 11.2% of New York City’s population), the NYCCHR recently issued lengthy guidance on reasonable accommodation obligations of employers (landlords and places of public accommodation) with respect to disability.  With respect to employers, the guidance addresses and provides examples of:

1) violations of New York City’s Human Rights Law (harassment– treating people “less well” because of disability is a violation of the law, discriminatory policies, and actions based on stereotypes or assumptions);

2) neutral employment policies that have a discriminatory impact;

3) job postings, employment applications, and hiring selection processes that are discriminatory;

4) failure to engage in the cooperative dialogue, failure to provide reasonable accommodations for disabilities, and defenses to a claim of failure to provide reasonable accommodations; and

5) reasonable accommodations based on disability, the prohibition of retaliation, and discriminatory harassment.

Recommendations

Employers with employees in New York City would be well-advised to:

• review the NYCCHR’s recent guidance on reasonable accommodation requirements for employers
• review any policies or practices prohibiting light duty work
• conduct trainings for managers on the new legal requirements of the cooperative dialogue process for reasonable accommodations
• post required notice (i.e., Pregnancy Rights notice) and consider voluntarily posting Notice of Rights
• conduct training for employees on their legal rights and process for requesting a reasonable accommodation
• review hiring practices and job postings
• update policies on absences, light duty and reasonable accommodation to comply with the NYCCHR guidance and the law
• confer with employment counsel.

Our employment law department can conduct audits of your employment practices, conduct training for managers on lawful hiring and handling reasonable accommodations and staff training, and update your employee policies.  Please contact Lisa Brauner, Head of Perlman & Perlman LLP’s Employment Law Practice, at: lisa@perlmanandperlman.com or 212-889-0575 to schedule an audit, training or update of your  employment policies for your organization. 

[1] The NYCHRL requires covered entities “provide reasonable accommodations to individuals with disabilities to enable them ‘to satisfy the essential requisites of a job or enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.”

[2] Covered entities include: (1) employers with at least four employees, including independent contractors; (2) providers of public accommodation; and (3) providers of housing accommodation, land, and commercial space. See N.Y.C. Admin. Code § 8-102.

The New York City Human Rights Law requires an employer to provide reasonable accommodations unless doing so would create an undue hardship for the employer, for the needs of individuals who have a physical, medical, mental or psychological impairment, or a history or record of such impairment (disability), pregnancy, childbirth or related medical condition, religious observance, and status as victim of domestic violence, sexual violence, or stalking.  The NYCCHR guidance addresses only disability, not the other reasonable accommodation categories.

As per the NYCCHR, “a reasonable accommodation is a change made to the work schedule or duties of an employee to accommodate their specific needs and allow them to do their job.”

The post NYC Employers Take Note! Enforcement Guidance Issued By NYC Commission on Human Rights on Employer Obligations for Reasonable Accommodation first appeared on Perlman Sandbox.

Imagine an employee tells you she is undergoing chemotherapy for pancreatic cancer and will need time off for treatment, and to heal and rest, intermittently, over the next 6 months.  What are your legal obligations as a New York City employer with respect to her request for an accommodation for her disability and what steps must you take to address that request?

Background

By way of background, under federal law (Americans with Disabilities Act Amendments Act), New York State law (New York State Human Rights Law), and New York City Human Rights law, covered employers must engage in a good faith, interactive process to determine a reasonable accommodation for a job applicant’s or employee’s disability.

New York City’s Human Rights Law (NYCHRL) goes further than disability with respect to the matters that covered employers must reasonably accommodate for job applicants and employees.   NYCHRL requires New York City employers with four or more employees to reasonably accommodate job applicants and employees because of pregnancy, childbirth and related medical conditions, religious observance, status as a victim of domestic violence, sexual violence or stalking, and, of course, disability, so that the employees can perform the essential functions of the job unless doing so would create an undue hardship for the employer.

NYCHRL also prohibits associational disparate treatment—meaning, an employer may not discriminate against an employee because of that employee’s relationship to or association with a person with an actual or perceived disability (i.e., firing an employee who volunteers helping people with AIDS out of fear that the employee will contract the disease, is unlawful).

What the Cooperative Dialogue Entails/What Has Changed[1]

Effective October 16, 2018, the New York City Human Rights Law will now require covered employers to engage in or seek to engage in a “cooperative dialogue” with individuals who may be entitled to such accommodation, and an individualized assessment, within a reasonable time, in order to identify what reasonable accommodations are available to assist that person.  In other words, there will now be a separate legal cause of action against an employer for “refusing or otherwise failing to engage in a cooperative dialogue” within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require such an accommodation.”  Thus, the cooperative dialogue requirement will now be the first step in providing a reasonable accommodation.

According to recently issued guidance by the New York City Commission on Human Rights (NYCCHR), the new cooperative dialogue law requires that once a covered entity (employers, public accommodations, and housing providers) learns, either directly or indirectly, of an individual’s need for an accommodation due to his or her disability, the entity must:

1) initiate a dialogue with the individual that addresses the individual’s needs and considers possible accommodations without creating undue hardship on the entity (in other words, it need not be the employee who initially makes a request);

2) notify the individual in writing of the determination to grant or deny the request for a reasonable accommodation (in the case of employers and housing providers).

The cooperative dialogue amendment expands upon the reasonable accommodation requirement to “engage in a good faith interactive process” by explicitly requiring an employer to engage in a dialogue with the employee (regardless of whether the employee initiates it) regarding the employee’s accommodation needs, potential accommodations (including any alternative accommodations), and any difficulties the accommodations may pose for the employer.   At the conclusion of the dialogue, the employer must provide the employee with a written final determination identifying any accommodation that was granted or denied.

Note that employees are not required to disclose their disability in a cooperative dialogue, or even before an offer of employment.  According to the NYCCHR guidance, it is unlawful for an employer to terminate an employee for failing to disclose his or her disability status or need for a reasonable accommodation.

Initiating cooperative dialogue

The employer must engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation, or who the entity has notice (i.e. should have known) may require an accommodation related to a disability.   For example, if employer has knowledge that an employee’s performance at work is diminished or that his or her behavior at work could lead to an adverse employment action and has reasonable basis to believe that the issue is related to a disability, the employer must initiate a cooperative dialogue with the employee. The employer should not ask the employee if the employee has a disability, but may ask if there is anything going on that the employer can help with, inform the employee that various types of support are available, and remind them of the workplace policies and procedures for requesting a reasonable accommodation.

Engaging in cooperative dialogue

The dialogue may be in person, in writing, by phone, or via electronic means. It should address potential accommodations that suit the individual’s needs, including alternatives to a requested accommodation, and the difficulties that such potential accommodations may pose for the covered entity. This process involves the employer communicating in good faith with the individual requesting an accommodation in a transparent and timely manner, and the individual responding in good faith (e.g., individual cannot simply reject an offered accommodation that would be sufficient to meet his or her needs because it is not the preferred accommodation).   If the employer offers accommodation and the individual reasonably determines that it is not sufficient to meet his or her needs, then the employer has not met its obligation to engage in a cooperative dialogue and must continue to engage in a conversation with the individual to determine if there are other alternatives to meet the individual’s needs.

Upon reaching a final decision through the cooperative dialogue, the entity must provide the person requesting the accommodation with a written final determination identifying any accommodation granted or denied. This concludes the cooperative dialogue.

If an employer determines that no reasonable accommodation would enable the employee to meet the essential functions of a job or enjoy the right(s) in question, that determination may be made only after engaging in and completing the cooperative dialogue process.

Continuing Obligation

Each time an individual makes a new request for accommodation, the employer must engage in a cooperative dialogue with the individual.  This may be cumbersome for the employer where, for instance, an employee has requested a leave of absence, and the leave continues to get extended from the original period of time requested.

Consequences of non-compliance

Failing to engage in a cooperative dialogue with an individual requesting a reasonable accommodation—which includes failing to provide written documentation of the final determination– is now an independent violation of the NYCHRL.

Those aggrieved may bring a lawsuit in court and recover all remedies available under New York City Human Rights Law.  If they bring a proceeding before the New York City Commission on Human Rights, employers found to have violated the cooperative dialogue requirement may be subject to damages for back pay, emotional distress damages, attorneys’ fees, and/or civil penalties up to $125,000 per violation, and up to $250,000 for a violation that is willful, wanton, or malicious, as well as directed to conduct employee training and update employee policies with particular language directed by the agency.

Recommendations

In view of this new law, covered New York City employers should consider:

• Updating employee handbook policies and procedures to reflect the new reasonable accommodation and cooperative dialogue requirements, including the process to request a reasonable accommodation and document whether an employer has granted or denied a reasonable accommodation request.
• Training supervisors on lawful hiring–particularly with respect to job candidates who may need reasonable accommodations for disabilities, religious practices/beliefs, pregnancy, childbirth and related medical conditions, victims of domestic violence– and on recognizing and properly and lawfully responding to requests for reasonable accommodations.
• Providing information to employees explaining their rights to reasonable accommodations for: (1) disabilities; (2) religious needs; (3) pregnancy, childbirth, and related medical conditions (written notice or posting required); and (4) victims of domestic violence, sex offenses, or stalking, and the cooperative dialogue process.

• Creating and providing a reasonable accommodation request form for employees, and document employer determinations on granting or denying reasonable accommodation requests.   Ensure that any medical information is kept separate from personnel files, and in a locked cabinet, with limited access to those with a “need-to-know.”
• Reviewing NYC Commission on Human Rights guidance for employers and places of public accommodation on reasonable accommodation of disabilities.

Our employment law department conducts training on lawful hiring and handling reasonable accommodations and updates employee policies.  Please contact Lisa Brauner, Head of Perlman & Perlman LLP’s Employment Law Practice, at: lisa@perlmanandperlman.com or 212-889-0575 to schedule a training (and update the employee handbook) for your organization. 

[1] Places of public accommodation (such as hospitals, medical or dental offices, hotels, theaters, and schools) are required to engage with customers in a cooperative dialogue to ensure they are providing reasonable accommodations.   Although the type of public accommodation and the nature of its interaction with a customer (e.g. shorter vs. longer-term relationship) may influence what is considered a “reasonable” accommodation, all places of public accommodations must consider certain types of accommodations regardless of an individual customer’s need.   For example, all places of public accommodations should evaluate whether it will be an undue hardship to install a ramp at the entrance of their facility.

The post Remember October 16, 2018 Deadline!: NYC Employers Must Engage in “Cooperative Dialogue” with Employees  first appeared on Perlman Sandbox.

Introduction

Imagine you are the principal at a public school. A student with a disability enrolls in your school. What services must the school provide? Do you have to ensure that the student achieves grade-level progress, is on track to gain self-sufficiency, and has opportunities similar to those given to children without disabilities? Or do you just need to ensure the student achieves some progress, no matter how minimal?

The United States Supreme Court (the “Court”) recently provided additional clarity for parents and school officials when they develop interventions for students with disabilities. While there is still room for interpretation, the Court’s guidance requires that schools provide students services that are “appropriately ambitious” given the severity of a student’s disability. The Court’s standard is higher than what many schools and districts were previously providing. Schools and parents should revisit their students’ interventions to make sure they comply with the new standard.

The Facts

The Douglas County School District in Colorado (the “District”) faced just such a question when Endrew F. enrolled as a kindergarten student. Endrew has autism. The school district, as required under the Individuals with Disabilities Education Act (the “IDEA”), worked with Endrew’s parents to develop an Individualized Education Plan (“IEP”) intended to address Endrew’s unique educational and functional needs. The IEP was essentially rolled over every year through fourth grade. By the end of fourth grade, Endrew’s parents became worried that Endrew’s academic and functional progress seemed to stall but the District proposed no new interventions. Instead, the District proposed a similar IEP for fifth grade.

Endrew’s parents had their worries validated when they enrolled their son at Firefly Autism House, a private school specializing in education for children with autism. Endrew began to make substantial progress. His parents asked the District to implement some of the behavioral interventions that were working for Endrew at Firefly in Endrew’s prior public school. The District essentially refused.

The Case

Under the IDEA, if a public school district fails to provide proper services to a student with disabilities parents may seek reimbursement for the cost of seeking those services elsewhere. When the District refused to provide additional interventions for Endrew his parents sought reimbursement from the District for the cost of sending Endrew to Firefly. The District refused and the issue wound its way through the courts.

The IDEA requires school districts to provide every student with a free appropriate public education, or FAPE, in order to receive certain funds. The dispute between Endrew’s parents and the District came down to their definitions of what constitutes a FAPE. The District argued that it was only required to provide services to Endrew that allowed him to receive some educational benefit – a minimal standard. An administrative law judge, a district court, and a court of appeals all agreed with the school district. Each ruled that so long as Endrew was making some progress, the District met its burden under the IDEA.

The Ruling 

The Supreme Court disagreed with the lower courts. In a unanimous decision issued on March 22, 2017, the Court rejected the District’s argument that any level of progress was sufficient. Without creating any bright-line rule, the Court stated that a child’s IEP “must aim to enable the child to make progress” and “must be appropriately ambitious.” The Court declined to adopt a more ambitious standard proposed by Endrew’s parents, which would have required school districts to provide “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded to children without disabilities.”

Takeaways

So how does a school district decide what is appropriately ambitious? The Court seems to say that each child with a disability must be viewed on a case by case basis. Schools should design ambitious plans based on a disabled student’s unique strengths and challenges without benchmarking their progress against children without disabilities. School officials must be able to offer a “cogent and responsive explanation” for their decisions related to the IEP.

In order to comply with the Supreme Court’s ruling, schools and districts should begin to review their IEP procedures. IEP teams should consider not only whether a student has made progress under their current and prior IEPs, but how much progress the student is reasonably capable of achieving in light of the student’s circumstances.

While the implications are not yet clear, the Supreme Court’s ruling is likely to invigorate parents and advocacy groups that seek additional services for children with disabilities enrolled in public schools.

The post What Public Schools Owe Students with Disabilities – A New Definition of an Old Standard first appeared on Perlman Sandbox.