reasonable accommodation - Horton Management Law

On August 9, 2019, Governor Cuomo approved a change to the New York State Human Rights Law enhancing worker religious discrimination protections. The law will now specifically address applicant and employee accommodations based on religious attire and facial hair. The amendment will take effect on October 8, 2019.

Religious Attire Protections

The amendment expands or at least clarifies the existing protections from religious discrimination under New York law.

The law already prohibits employers from requiring an applicant or employee to “violate or forego a sincerely held practice of his or her religion.” Before, this specifically included “the observance of any particular day or days or any portion thereof as a sabbath or other holy day.” Now the law adds a specific reference to “the wearing of any attire, clothing, or facial hair in accordance with the requirements of [the person’s] religion.”

“Undue Hardship” Exception

Employers will not always have to allow employees to wear religious attire or facial hair in every situation. There is an exception if, after engaging in a bona fide effort, the employer can “demonstrate that it is unable to reasonably accommodate the employee’s or prospective employees sincerely held religious observance or practice without undue hardship on the conduct of the employer’s business.”

Employers Must “Reasonably Accommodate” Religious Beliefs

New York State and federal law both require employers to make a reasonable religious accommodation for an employee’s sincerely held religious beliefs, unless doing so creates an “undue hardship” on the employer. Protected religious beliefs may include those of a traditional, organized religion. But also include beliefs not part of a formal religion or sect, even if practiced by relatively few people.

Employers should consider various factors in assessing whether a religious accommodation request imposes an undue burden or hardship. Here are some factors highlighted by the New York Attorney General:

the type of workplace;
the nature of the duties required for the position;
any cost associated with the implementation of the request relative to the size and budget of the employer;
the effect that the religious accommodation may have on the business;
any collective bargaining rights or seniority rights that may exist;
the number of individuals that may require the accommodation;
any impact on workplace safety and productivity;
whether the requested accommodation would conflict with another law that pertains to the circumstances; and
whether any alternative accommodations would also meet the needs of the religious needs of the applicant or employee.

It is often difficult for an employer to truly understand what religious beliefs would be considered “protected” under state and federal law and therefore must be accommodated. If you have an applicant or an employee that has requested a reasonable accommodation based on a protected religious belief, it is strongly recommended that you seek guidance from an employment attorney before making a decision that could potentially subject the company to liability.

Review and Prepare

New York employers should review existing dress code and grooming policies in light of the revised law. You should ensure that all personnel responsible for receiving and responding to applicant and employee accommodation requests in New York familiarize themselves with the new religious attire provision. They must also understand their obligations regarding religious accommodation requests generally.

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When employees request disability accommodations, New York employers must engage them in an “interactive process”. The goal is to identify the limitations resulting from the disability and potential accommodations that could overcome those limitations. Both employees and employers have obligations in the accommodation process.

Employee Request for Accommodation

Employers must engage in an interactive process with employees who request accommodation. The employee request is some indication of the need for adjustments related to the employee’s own medical condition.

Under the federal Americans with Disabilities Act and the New York Human Rights Law, employers are only obligated to accommodate an employee’s medical condition. These laws do not require accommodations of a family member’s medical condition, Unlike the FMLA or the New York Paid Family Leave law requirements, these reasonable accommodation protections only apply to an employee with a disability.

Indirect “Requests”

It is not absolutely necessary in every case that the employee actually verbalize or request accommodation. First, if a family member contacts the employer and provides enough information about the employee’s medical condition and need for some accommodation, then you couldn’t require the employee to personally ask for it him or herself. Likewise, if the need for accommodation is abundantly clear, the employer can’t necessarily wait for the employee to ask. For example, an employee in a wheelchair need not specifically state that he can’t climb up stairs.

Insufficient Requests

On the other hand, there are situations where the employee might ask for a change in the workplace but not make it clear that it’s related to a medical condition. Then, if the employer doesn’t have other independent knowledge of a medical condition, that request wouldn’t necessarily trigger any obligation to engage in an interactive process for accommodation under the disability discrimination laws.

For example, an employee says that they need another screen or they want a larger monitor for their computer at work. That in and of itself is not obviously a disability accommodation request. Unless the employer knows that there is some vision or other related condition, it’s plausible that somebody might just happen to prefer a larger monitor but not actually need one for a medical reason. But if the company already knows that the person is visually impaired when they ask for a larger monitor, then this would qualify as a request for accommodation, and the interactive process should begin.

Engaging in the Interactive Process

“Interactive process” is a phrase that comes out of the federal regulations interpreting the ADA. The EEOC’s regulations specifically refer to it as an “informal” process. This doesn’t mean informal in the sense of a casual conversation in the hallway. Really, it should be relatively formal as far as employee relations matters go. It’s only informal in the sense that the interactive process doesn’t have to have a lot of documentation back and forth; doesn’t directly involve outside agencies; nothing has to be filed; and under the ADA the company is not obligated to put in writing–for example, here are the accommodations we think you should have, then employee has a certain amount of time to object or something like that. So, in that sense, “informal.” But it doesn’t mean that it’s not taken seriously.

In some situations, it’s pretty easy to have the “interactive process”. If an employee says, “I need a larger monitor”. The company says, “How much larger do you need”? The employee might suggest a 60-inch screen, but the company says, “How about we give you 30 inches”? If the employee says, “Okay. Yeah, that’s fine. I should be able to see what I need there,” then it’s done. The monitor is provided, and everyone goes forward. Technically, that’s an interactive process.

Of course, in some cases, the company will need more information from the employee to evaluate possible accommodations. This might include something from their doctors as to why they need an accommodation what the accommodation might need to look like.

Obtaining Medical Information

Unless the medical condition and need for accommodation are obvious, employers can require employees to provide information about their disability. There are relatively few disputed cases where it’s so obvious that you couldn’t ask for any medical documentation. If it is that obvious, you’re probably either accommodating or able to make the analysis without medical information. The important question is more about the scope of the medical information when you choose to ask for it. Employers should not go beyond the possible need for accommodation. So you can’t expect a complete medical history on an employee just because they say they have carpal tunnel and need some accommodation for typing.

HIPAA Compliance

Employers can ask an employee to sign a HIPAA authorization so that the company can get the information directly from the medical providers. Or you can ask the employee to get the information from the doctor and then hand it over to human resources. In that scenario, the doctor doesn’t technically need a release, and the employer doesn’t need one to get the medical records.

Employers must maintain the information confidentially once they get it. But within the organization you can share the information on a need-to-know basis to conduct the interactive process and make accommodations.

Using Job Descriptions

It’s usually a good idea to make sure the doctor has a job description that accurately explains what the employee is expected to do. The doctor should reference the job description in giving feedback on the need for accommodations.

Second-Guessing the Employee’s Doctor

Employers don’t have to accept the doctor’s opinion, restrictions, or suggestions in all cases. You would want to have a good reason for disagreeing with what the doctor says. But if you believe and have some basis for the conclusion that the doctor’s recommendation is ridiculous, then you can act on that. You might even want to get a second opinion in some cases. That’s possible as part of the interactive process as long as you’re being reasonable and not throwing unrealistic obstacles in the way of an employee getting an accommodation.

Interactive Process Is a Two-Way Street

Always remember that the interactive is something that both the employee and the employer must participate in. So, if the employer tries to get information from the employee and the employee won’t provide it, then that will ultimately reduce the company’s obligation to provide the accommodation in some ways.

Likewise, however, if the employee asked for an accommodation, and the employer just flat-out refused to consider it or engage in any sort of interactive process, that is going to hurt the company in an employment discrimination case alleging failure to accommodate. Even if the company probably wouldn’t have been able to accommodate this employee, it’s going to be a big evidentiary problem that they didn’t even try by interacting with the employee.

Choosing an Effective Accommodation

As part of the interactive process, the employer must evaluate the circumstances, what accommodations are available, and whether they create an undue hardship. Then you wrap the process up by advising the employee of the decision either to allow the requested accommodation, pursue an alternative, accommodation, or deny the request altogether. Other outcomes include a finding that the employee doesn’t actually need an accommodation to perform the essential functions of the job. Or it might be that the employee no longer needs to perform a particular job function because it’s not essential.

There are cases where an employee receives an accommodation, but it doesn’t seem to work. Then the interactive process could recommence. Plus, any individual employee could have multiple disabilities that need to be accommodated in different ways. Then interactive processes could be going on simultaneously along multiple paths for different medical conditions.

The ultimate goals of the interactive are to understand the employee’s medical limitations, determine the possible accommodations to evaluate effectiveness and feasibility of accommodations, choose among available alternatives, and ideally reach agreement with the employee on the accommodations.

Employer’s Choice Among Alternatives

Employees are not legally entitled to the exact accommodation that they request. If there are alternative accommodations that would also enable the employee to perform the essential functions of their job, the company has the right to determine which combinations would be effective. The employer can choose any accommodation–whether because it would be cheaper or otherwise less burdensome on the company–as long as it’s still effective. That is, as long as the employee can perform the job and does not suffer medical consequences as a result.

You would ideally like the employee to agree and acknowledge that they accept the accommodation that is being afforded. But they don’t have to. And the employer can still go forward and say this is what we’re going to do. Most employers won’t want to get to the pure “take-it-or-leave-it” point. It is better to try to work it out and get the employee’s consent. But, ultimately, it’s the employer’s choice.

Additional New York City Requirements

Cooperative Dialogue

The New York City Human Rights Law was amended effective October 2018 specifically regarding the reasonable accommodation issue. The amendment added the concept of a “cooperative dialogue” for employees working in New York City.

Within NYC, the employer and employee now must engage in good faith in a written or oral dialogue concerning:

the employee’s accommodation needs;
potential accommodations that may address their accommodation needs, including alternatives to a requested accommodation; and
the difficulties that such potential accommodations may pose for the employer.

This is essentially the interactive process, but probably now constitutes a heightened requirement that the employer actually address each of these factors that the ADA and New York State Human Rights Law don’t specifically identify.

Written Determination

Perhaps even more tangible, the NYC Human Rights Law now requires that employers provide employees who have requested accommodations with written final determinations identifying any accommodation granted or denied. (To be clear, this only applies to employees who work in New York City.)

This all basically means that if you’re an employer with an employee in New York City who asks for a disability accommodation: First, you must entertain a cooperative dialogue with them. Then you must provide a summary report that says, in essence, these are the accommodations that we considered and these are the ones that we are providing. Neither the ADA nor the New York State Human Rights Law requires a written determination. But New York City now does. Failing to provide the written determination violates the NYC Human Rights Law as a form of employment discrimination.

Is This All We Need To Know About Accommodating Disabilities?

Probably not. Unfortunately, employee medical issues can be complex challenges for employers. The ADA and state and local disability discrimination laws are not even the only legal parameters at play in many of these situations. But knowing when you need to engage in the interactive process and roughly how that works is a major step in the right direction.

If you want to learn more, watch our related webinar: Accommodating NY Employees with Disabilities.

And here are some additional articles discussing employee disability issues:

What Is a Disability Under the ADA?

Reasonable Accommodations of Disability in Employment

Is Time Off a Reasonable Accommodation?

Mental Health Leave Under the ADA

The U.S. Equal Employment Opportunity Commission also offers relevant guidance here.

Tag: reasonable accommodation

New York Extends Worker Protections for Religious Attire