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Here at Miletti Law®, we are the authoritative force in Employment and Labor Law. Therefore, we are committed to updating our series on employment & labor law with fresh, verifiable, and credible content. In that spirit, this blog is Part XVI of our series on New York State and City laws that apply to the issues oworkplace harassment, discrimination, & retaliation. In Part XV of this series, we provided you with an overview of the duty employers have to reasonably accommodate disabilities pursuant to the NYSHRL. As we move the discussion forward in this blog and Part XVI of the series, we have provided you with a hands-on guide regarding what both the NYCHRL & NYSHRL say about the process of requesting accommodation.

The Process of Requesting a Reasonable Accommodation under the NYCHRL

Under the NYC Administrative Code § 8-107, subd. 28(a)of the NYCHRL, any employer who fails or refuses to engage an employee who the employer has noticed may need an accommodation or who has requested a reasonable accommodation for a disability in cooperative dialogue and within a reasonable time is liable for an unlawful discriminatory practice. Further, in line with the NYC Administrative Code § 8-107(7), employers are prohibited from retaliating against employees who have requested reasonable accommodations. Additionally, the NYC Administrative Code § 8-107, subd. 28(e)provides that the conclusion that no reasonable accommodation exists can only be made after the employer has tried to engage the employee, or both parties have, in good faith, in a cooperative dialogue. Several factors have to be considered when evaluating whether an employer has, in good faith, engaged in a cooperative dialogue. Such factors include, but are not limited to:

  • The timeliness, particularly based on the request’s reasonableness & urgency, of the employer’s response to the request.
  • Whether the employer attempted to deter or intimidate the employee from requesting the accommodation or tried to delay or obstruct the cooperative dialogue.
  • The existence of a policy at the workplace that acts as a guide on how employees can request accommodations.

Importantly, either a reasonable accommodation is provided, or the employer concludes any of the following for a cooperative dialogue to end:

  • Although the parties did not identify a reasonable alternative during the cooperative dialogue, the employer and employee identified a reasonable accommodation, but the latter refused to accept it.
  • No accommodation exists that will allow the employee to perform the job’s essential functions.
  • No accommodation is available that will not result in an undue hardship for the employer.

Nonetheless, the NYC Administrative Code 8-107, subd. 28(d)provides that irrespective of the outcome, the employer should provide the employee with a final written determination in which any accommodation denied or granted is identified.

The Process of Requesting a Reasonable Accommodation under the NYSHRL

Under the NYSHRL, the duty and obligation to let the employer know about a disability and the need for a reasonable accommodation due to that disability is the burden of the job applicant or employee. After that, while tasked with the duty of investigating the request for accommodation and determining its feasibility, the burden shifts to the employer.

However, the NYSHRL does not have a provision that the employee should be provided with the specific accommodation preferred or requested by such an employee. Nonetheless, the employer is allowed to ask the job applicant or employee to provide any required documentation following the request for an accommodation from such an individual. As provided under section 9 NYCRR § 466.11(j) and (k) of the NYSHRL, if the employer wishes to verify the disability in question, then such an employer has the right to ask for any documentation or medical information necessary to evaluate the need for an accommodation.

In Part XVII of this series, we shall switch gears and look into “Pregnancy-Related Protections,” as provided under the NYCHRL & NYSHRL and other relevant laws that apply to workplace harassment, discrimination, & retaliation in New York.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.