New York has some of the strongest anti-discrimination and anti-retaliation laws in the country. Even with the strength of these laws, gaps may still exist, leaving some workers at risk of retribution when they stand up for their rights. Recently, New York State took an added step to close a hole in the state’s anti-retaliation law. The New York State Human Rights Law now says that your employer cannot take an adverse action against you for requesting a reasonable accommodation. If you have made such a request and your employer has punished you for it, you should speak to an experienced New York retaliation lawyer to discuss what steps you should take.
The NYSHRL, as amended by Senate Bill 3398, now gives workers the right to request reasonable accommodations for a variety of reasons, as its amended text expressly includes requesting an accommodation among the activities that qualify as protected under the statute. Federal law (the Americans with Disabilities Act) and city law (the New York City Human Rights Law) had already established that accommodation requests are protected activities that shield workers from punitive consequences.
Examples of accommodations an employee might request can include: extra time for extra bathroom breaks, purchase of an ergonomic chair, keyboard, etc., moving your workstation closer to the restroom, a modified (light duty) reassignment that involves less (or less strenuous) lifting, or a modified schedule to accommodate religious observances or medical appointments. The bases for providing an accommodation may include things like religious observances, disability, pregnancy, and more.
The law says that, if you make a request for an accommodation, your employer must undertake what is called a “good-faith interactive process.” This means your employer must engage you in a collaborative back-and-forth dialogue designed to identify a reasonable accommodation.
Once you have made a request for accommodation, the law requires your employer to meet with you promptly to discuss possible options and choose the appropriate accommodation. After you and your employer select an accommodation, the law requires the employer to provide that accommodation except in special, rare cases, where providing the accommodation would be an “undue burden” on the employer.
Your employer, of course, may also decline to provide any accommodation. Say, for example, you have requested full-time remote work because you are immunocompromised. Your employer may initiate the interactive process, or your employer may decline to start the process or provide an accommodation because you, in its opinion, do not have a qualifying disability.
What the new amendment to the NYSHRL says, and what is important to keep in mind, is that, regardless of the outcome – receiving your requested accommodation, receiving a compromise accommodation, or receiving no accommodation at all – you have a right to request an accommodation so long as you made that request in good faith. If yours was a good-faith request, the newly amended NYSHRL says that your employer may not punish you for making that request.
The Protection in Practice: A Case Example
An example of the importance of this protection was on display in a recent case from the Southern District of New York federal court. The employee had previously worked fully remotely but was subsequently ordered back to the employer’s office.
The employee requested to continue working 100% remotely as a disability accommodation. The employer engaged the employee in an interactive process and offered multiple compromise accommodation options, including partial remote work, but would not allow her to work fully remotely.
In that scenario, the employee did not have a viable disability discrimination claim because the employer had proof that it engaged in a good-faith interactive process and had offered several alternative (and reasonable) accommodations like partial remote work.
The federal court, however, allowed the employee to continue pursuing her retaliation claim. Even though the employee’s disability discrimination under the ADA was subject to dismissal, the timing and circumstances surrounding the adverse employment action the employee identified were enough to raise a viable issue of retaliation because (as noted above) the employee’s request was a protected activity. Because the adverse employment action followed soon thereafter, the employee was entitled to pursue her claim.
If you have a need for a workplace accommodation and have questions about making a request, or if you have already made a request and suffered punishment for doing so, talk to the New York retaliation attorneys at Phillips & Associates, PLLC. We understand the importance of workers’ abilities to engage in protected activities without fear of reprisal and are dedicated to fighting for workers’ rights. To find out more about how we can help you, contact us online or call (866) 229-9441 to schedule a free, confidential consultation today.