Disability Accommodation Requests and the Interactive Process

Normally, when an employee is faced with the tall task of approaching their employer to request an accommodation for a disability, a first inclination is hesitation – whether an employer will react with disbelief or disdain, or even suggest that maybe the job at hand is not “a good fit” and it’s time to move on. Collectively, this amounts to a terrifying proposition. In this entry, I wanted to quickly explore what is required of an employer in such situations under the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL), to better equip an employee if this situation ever presents itself.

The first step required under the NYSHRL is for an employer to engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested. The interactive process continues until, if possible, an accommodation reasonable to the employee and employer is reached.

The legislative purpose of the NYSHRL cannot be achieved without requiring that employers, in every case, consider the requested accommodations by engaging in an individualized, interactive process.  A failure to consider the accommodation is a violation of the NYSHRL, since the “employer has the responsibility to investigate an employee’s request for accommodation and determine its feasibility” (Pimentel v. Citibank, N.A., 29 A.D.3d 141, 149, 811 N.Y.S.2d 381 [2006], lv. denied 7 N.Y.3d 707, 821 N.Y.S.2d 813, 854 N.E.2d 1277 [2006]; cf. Parker v. Columbia Pictures Indus., 204 F.3d 326, 338 [2d Cir.2000], an ADA case in which the court ruled that “[a]t the very least … an employee who proposes an accommodation while still on short-term leave … triggers a responsibility on the employer’s part to investigate that request and determine its feasibility. An employer who fails to do so, and instead terminates the employee based on exhaustion of leave, has discriminated ‘because of’ disability within the meaning of the ADA”).

The NYCHRL has an even more expansive definition of interactive process and requires an individualized interactive process, and its absence represents a violation of the NYCHRL.  The NYCHRL goal of preventing discrimination (which includes failures to accommodate) “from playing any role in actions relating to employment, public accommodations, and housing and other real estate” (Administrative Code § 8–101) would otherwise be undermined.  The relief available to a plaintiff for an employer’s failure to engage in the interactive process depends on whether the process could have yielded a substantive accommodation that was reasonable.

As every employee’s situation is different, it is most prudent to contact a disability discrimination attorney to flesh out the facts to determine whether your claim is meritorious.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the disability discrimination attorneys of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

 

 


New York City’s Pregnant Workers Fairness Act in Effect

On January 30, 2014, New York City entered a new phase of combatting pregnancy discrimination in the workplace with the Pregnant Workers Fairness Act finally going into effect. The law will now require employers to reasonably accommodate pregnant workers, similar to the reasonable accommodation that is required to be provided for disabled employees under the New York City Human Right Law. This law passed with little fanfare, as most believed something like this was already on the books, but in reality was not. Prior to the passage of the Pregnant Workers Fairness Act, pregnancy was not considered a disability, rather, it was held to be short-term disability that did not require an employer to make any adjustments, which could range from allowing for water breaks, providing for a more comfortable chair, or simply allowing a pregnant employee to see a doctor.

The New York Times recently published an article where Floralba Fernandez Espinal, a clerk at a national chain thrift shop, was three months pregnant and was worried about losing her child from being overstressed at work. She was told by her employer to bring in a doctor’s note stating she was seeking some type of accommodation. The letter from her doctor at New York-Presbyterian Hospital was clear: “No lifting, pushing or carrying heavy objects or loads.” Despite doing what her manager had asked of her, Ms. Fernandez was placed on unpaid leave because according to her employer, she could no longer do her job. Ms. Fernandez, fearing something was askew, decided to record the conversation she had with her manger, where she had stated that all she was restricted from doing was heavy lifting, but she could perform other tasks around the store. Her proclamation made no difference and was still asked to leave. Ms. Fernandez smartly lawyered up and is now seeking back pay and reinstatement from her former employer.

Ms. Fernandez’ situation will now be treated in a starkly different fashion because the Pregnancy Workers Fairness Act is in effect. Prior to the law’s passage, Ms. Fernandez’ condition would not have required the company to accommodate and she would have no actionable rights. However, it will be interesting to see if the claim does segue into the realm of litigation, and how the Courts will treat this case since Ms. Fernandez was put on unpaid leave before the January 30, 2014 effect date of the law. We will keep you apprised of any developments in this case and with the roll out of the law.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the pregnancy discrimination attorneys of Risman & Risman, P.C. at (212) 233-6400 or contact us online.