As of February 8, 2020, New York State will be expanding the scope of anti-discrimination laws to include ALL employers within the state, not just those with 4 or more employees. Because the law will now apply to more employers than ever, a refresher course is in order. Under both federal and state law, it is illegal to discriminate on the basis of a protected disability.
As a business owner or employer, you may be faced with the responsibility of addressing an employee with a protected disability. There are important requirements that need to be met and steps that should be taken to appropriately balance an employee’s needs and practical considerations for the employer. Even if a disciplinary action would be justified on a basis that is separate from the disability, it is advisable to “cover your bases” and initiate the process as an added measure of protection for the employer.
The Cooperative Dialogue is the first step in beginning the conversation. The purpose of the Cooperative Dialogue is to evaluate an individual’s needs and to consider all possible accommodations for the employee that would allow them to perform the essential requisites of the job without creating undue hardship for the entity.
The “Cooperative Dialogue” is the process by which an employer and employee engage in good faith to discuss:
It is important to note that the dialogue must be completed within a “reasonable time” after the employer is put on notice that an accommodation is needed, and it should be fully documented. There is no requirement regarding the means of communication, though. Communication in person, over the phone, via electronic means, or even in writing are acceptable methods.
An employer should not just “go through the motions” in conducting the Cooperative Dialogue. The employer should make the employee feel comfortable in the conversation and not have a suspicious or questioning tone. In determining whether the Cooperative Dialogue occurred in good faith, factors that may be considered are:
A Cooperative Dialogue may be requested by the individual employee or initiated by the company. Note that there is an affirmative duty on behalf of the employer to initiate a conversation if he/she has learned either directly or indirectly that an employee requires an accommodation.
If the employee has not initiated a Cooperative Dialogue, but the employer has reason to believe that the employee may require an accommodation, the employer should set time aside to speak with the employee ask if anything is going on with the employee that the employer can help with. Appropriate questions include:
Most importantly, do not ask if the employee has a disability outright. At this stage, if the employee does not disclose that they have a disability, the employer has met their obligation to initiate a Cooperative Dialogue.
Keep in mind:
The employer may ask the employee to provide medical documentation sufficient to:
However, the employer may not:
Note that, in circumstances in which an individual’s disability is already known, employers must be careful in requesting additional medical information, as it can constitute harassment.
Before denying or granting an accommodation, employers can consider whether the request would create an “undue hardship.”
Employers have the burden of proving that, even with reasonable accommodation, an employee with a disability could not “satisfy the essential requisites of the job.”
Employers must engage in the interactive process even where no reasonable accommodation could allow the employee to perform the essential duties of the position prior to making such a determination.
Generally speaking, an undue hardship exists if it:
Remember, if an entity offers an accommodation that the employee reasonably determines is insufficient then the entity must continue the conversation to determine if there are any alternatives available. Further, any additional requests over time require a new Cooperative Dialogue.
The Cooperative Dialogue is ongoing until one of the following occurs:
(1) A reasonable accommodation is granted; or
(2) The employer reasonably concludes:
(a) There are no reasonable accommodations that will not cause an undue hardship;
(b) An accommodation was proposed but rejected by the employee and no alternative was identified; or
(c) No accommodations exist that would allow the employee to perform the essential requisites of the job.
Once the employer reaches a conclusion, he or she must promptly provide the employee with a written determination regarding the availability of an accommodation. The employee should acknowledge and confirm receipt of the notification.