NYC Employers Must Comply With New Laws on Accommodations and Schedule Changes
In January 2018, New York City enacted two new laws affecting employers. The first, which became effective as of July 18, 2018, protects employees seeking temporary changes in their work schedules due to certain personal events. The second new law, effective as of October 15, 2018, expands an employer’s obligations with respect to providing workplace accommodations to eligible employees. Below are descriptions of some of the notable requirements under these new laws.
Temporary Changes to Work Schedule
As of July 18, 2018, eligible employees in New York City are now entitled to request a temporary change in their work schedule up to two times per calendar year for up to one business day (i.e., 24-hour period when an employer requires employees to work at any time) per request for needs relating to a personal event, meaning:
- an employee’s need to provide care to (i) a minor child, or (ii) a family or household member with a disability who relies on the employee for medical care or to meet the needs of daily living;
- an employee’s need to attend a legal proceeding or hearing for subsistence benefits to which the employee, a family member or household member is a party; or
- any circumstance that would constitute a basis for permissible use of safe time or sick time under the City’s Earned Safe and Sick Time Act (“ESSTA”).
A temporary change in schedule means a limited alteration in the hours or times that or locations where an employee is expected to work, including, but not limited to, using paid time off, working remotely, swapping or shifting work hours and using short-term unpaid leave.
Employees who wish to request a temporary change in schedule, among other requirements, must notify their employer as soon as they become aware of the need for a change and that the change is due to a personal event, and employers are required to respond to an employee’s request “immediately.”
This initial request from the employee need not be in writing. However, as soon as practicable, but not later than two business days after the employee returns to work following the temporary schedule change, the employee must submit the request in writing to the Company, indicating the date for which the change was requested, that it was due to the employee’s personal event, and the proposed change in schedule (unless seeking leave without pay). As soon as practicable, but not later than 14 days after the employee submits the written request, the employer must respond in writing and specify:
- whether the employer will agree to the temporary change in work schedule in the manner requested by the employee, or will provide the temporary change in work schedule as leave without pay (which does not constitute a denial);
- if the employer denies the request, an explanation for the denial; and
- the number of requests and business days the employee has left in the calendar year after accounting for the employer’s decision. Notably, employers may only deny the request if the employee has already exhausted the two allotted requests in the calendar year (or if the employee is not covered by the law).
Importantly, unpaid leave granted for a personal event is provided in addition to sick and safe time accrued under ESSTA, and employees will not be required to exhaust any accrued but unused sick or safe time before requesting temporary schedule changes under this new law.
New York City employers should carefully review their PTO and other handbook policies to ensure they are consistent with this new temporary change in work schedule law.
Cooperative Dialogue Regarding Accommodation
Beginning October 15, 2018, New York City employers will be required to engage in a “cooperative dialogue” with employees who may need an accommodation for their disability; pregnancy, childbirth or related medical condition; religious needs; or needs as a victim of domestic violence, sex offenses or stalking.
“Cooperative dialogue” refers to the process of engaging in good faith in a written or verbal dialogue concerning the employee’s accommodation needs; potential accommodations that may address such needs, including alternatives to a requested accommodation; and the difficulties that any such potential accommodation may pose for the employer.
Under this new law, an employer must engage in a cooperative dialogue within a reasonable time with an employee who requests an accommodation or one who the employer has notice may need an accommodation – even if the employee does not make a specific request. At the end of the cooperative dialogue, once a final determination is made, the employer must provide the employee with a written statement of such determination identifying whether an accommodation was granted or denied.
Accordingly, this new cooperative dialogue law imposes additional, more onerous obligations on employers in comparison to the federal Americans with Disabilities Act (ADA) and New York State law. For example, under the ADA and state law, it is generally the employee’s responsibility to come forward and request an accommodation from the employer, whereas here the employer must begin the cooperative dialogue with the employee if the employer is “aware” that the employee “may” need an accommodation, regardless of whether or not the employee makes a request. Moreover, there is no requirement under the ADA or New York State law for an employer to provide the employee with a written statement of the ultimate determination following discussions regarding potential accommodations. Finally, this cooperative dialogue law extends beyond accommodations for an employee’s qualified disability – employers must also engage in a cooperative dialogue regarding potential accommodations for an employee’s religious needs; pregnancy, childbirth or related medical conditions; and needs as a victim of domestic violence, sex offenses or stalking.
New York City employers should revise their EEO and accommodation policies to comply with this new cooperative dialogue law.
With these new laws taking effect in 2018, New York City employers should review and update their written policies to ensure compliance and consult with employment counsel regarding any protections offered by the laws.
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