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.
Cooperative Dialogue Requirement, Generally
The “Cooperative Dialogue” is the process by which an employer and employee engage in good faith to discuss:
- the employee’s accommodation needs;
- potential accommodations that may address the employee’s accommodation needs including alternatives to a requested accommodation; and,
- the difficulties that such potential accommodations may pose for the employer
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.
The ‘Good Faith’ Standard
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:
- whether the entity has a policy informing employees on how to request accommodations for disability;
- whether the entity responded in a timely manner in light of the urgency and reasonableness of the request; and
- whether the entity sought to obstruct or delay the Cooperative Dialogue. An indeterminate delay may have the same effect as a denial.
Initiating the Cooperative Dialogue
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:
- You seem to be more fatigued than normal, is there something I can do to support you?
- I have noticed you are struggling to finish your tasks, is there something I can do to assist you?
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:
- An employee’s decision not to disclose information about their disability does not bar them from doing so in the future
- An employer can reiterate that they are there for support, but if the employee continues to decline to participate in a Cooperative Dialogue the employer may take disciplinary action if they have not been performing their job adequately.
Do’s and Don’ts
The employer may ask the employee to provide medical documentation sufficient to:
- Confirm that the employee has a disability;
- Identify the functional limitation due to the disability; and
- Explain the need for the requested accommodation.
However, the employer may not:
- Speak to employee’s health care provider without the employee’s consent;
- Require that the specific disability or diagnosis be disclosed;
- Request specific types of medical information or specific medical forms; or
- Ask for medical records unrelated to the disability at hand.
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.
Undue Hardship
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:
- Hurts employee benefits
- Is impossible to implement (e.g. due to physical office space constraints, etc.)
- Creates an unsafe work environment
Examples of Reasonable Accommodations (Assuming No Undue Hardship)
- Changing office seating arrangements/relocating employee to different floors
- Adjusting the employee’s schedule to accommodate fatigue and rest periods
- Providing paid or unpaid leave for treatment and keeping the position open for when they return
- Providing additional time to finish tasks
- Reassigning the employee
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.
Concluding the 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.
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