Workplace accommodation is often confused with family leave.

An employee’s request for a workplace accommodation is not the same as asking for family medical leave. An employee who needs a workplace accommodation must ask for it unless the employee has an obvious disability. The request must be for the employee and not the employee’s child or parent. It must be reasonable. And the request must not create an undue hardship for the employer.

Requests for workplace accommodations are fairly common. New York employers must inform employees of the procedures for requesting accommodations. Once an employee has made a request the employer has a duty to request documentation from the employee. The employee usually has to provide medical verification. And the employer may select the reasonable accommodation if the employer’s chosen accommodation effectively meets an employee’s need.

This process is often referred to as the interactive process. There are no specific rules or guidelines for that process. It begins with an employee’s request and sometimes ends when a New York employer decides what the employer believes will be reasonable and not cause it undue hardship. It’s an area where an employment lawyer can provide much guidance and counseling.

The interactive process often involves an employee’s own disabling condition. But it can also involve accommodating an employee’s religious, pregnancy, or domestic violence needs; especially under the New York City Human Rights Law.

An employee’s disabling condition might be physical, psychological or invented by the employer. Employers who invent disabilities for their employees are regarding or perceiving them as disabled even though they are not. An employer’s perceiving or regarding someone as disabled when they are not is against the law.

Some commonly regarded or perceived as disabled claims are made by recovering alcoholics or employees who have been observed or reported as dangerous to others. Employees who were once addicted to drugs or alcohol but no longer abuse such substances are protected by federal, state, and New York City Human Rights Laws.

Human Rights Laws also protect employees who are regarded as dangerous but who are not. In one case, New York’s Appellate Division reviewed the case of a woman who had been forced to retire. Her employer considered her to be a danger to herself and to others and required that she undergo a psychological evaluation. The Appellate Division held that she had stated a claim that her employer regarded her as disabled and could proceed under New York State’s Human Rights Law. See Ashker v. International Business Machines Corp., 168 A.D. 2d 724, 563 N.Y.S. 2d 572 (App. Div. 3rd Dept. 1990).

The Americans with Disabilities Act and the Federal Rehabilitation Act are federal laws which apply to employers with fifteen (15) or more employees. The New York State Human Rights Law protects employees working for employers who have four (4) or more employees working in, or sometimes remotely, New York. And the New York City Human Rights Law usually protects employees working for employers who have four (4) or more employees working in, or telecommuting from Manhattan, Queens, Brooklyn, the Bronx, or Staten Island.

New York City’s law is the most protective of the three. Courts have held New York State’s law to be more broad than the federal laws. Courts have also held that New York City’s law should be more liberally construed than either the federal or state laws. What this means is that employees working in New York City have the most protection. And employees in New York State have more protection than those in most other parts of the country but not as much protection as employees who work in the city.

However, safety sensitive positions allow employers, especially local governments, to disqualify some candidates who might otherwise be entitled to reasonable accommodations in non-public safety positions. See Lamotta v. New York City Transit Authority, 165 A.D. 2d 875, 560 N.Y.S. 2d 346 (App. Div. 2nd Dept. 1990).

Although family medical leave is sometimes associated with a request for a workplace accommodation many times it is not. Employers do not have to accommodate the disabilities of an employee’s family. There is no requirement to accommodate an employee’s spouse, children, or parents.

However, employees covered by medical leave such as the Family Medical Leave Act may request leave to care for the serious health condition of themselves or their immediate family members. The family member might be the employee’s child or parent. Such a request is separate from the employee’s own disability accommodation request. Employers must allow qualified employees to take such leave.

Employers who refuse sometimes face associational discrimination claims. An employee with one or more immediate family members with a serious health condition would not be entitled to reasonable accommodation but would be entitled to take family medical leave to care for such immediate family members and denial could result in an associational discrimination claim as well.

It was about 2 years ago that our Second Circuit Court of Appeals addressed this rarely litigated claim. That case was Graziado v. Culinary Institute of America, 817 F.3d 415 (2nd Cir. 2016). One of the more interesting aspects of that case was that the Court found individual liability under the FMLA in that case.

I am Jonas Urba, a New York employment lawyer. Not long ago I launched Employment Law Reality Check. I recognized that many “at will” employees were confused. With so much fake news out there and so many promises of great results it seemed real to inform the public the reality of employment law.

Employment law cases are never easy. They are heavily fact based. They consume lots of time to investigate and to resolve. Therefore I began some short clips as you see on this page to help employees and small employers recognize the reality of employment law claims.

I serve the entire state, associate with counsel at times, and may be reached at (914) 366-7366. Phone calls are always preferred to e-mails as I often hear of initial calls not returned. Please leave a detailed message and my goal is to return calls on the day they are made (within 24 hours at the latest). Thank you for listening and reading.