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General Regulations

Download PdfGeneral Regulations 466.1 to 466.10 and 466.12 (Printable Version)

466.1 Employers, employment agencies, labor organizations and labor management committees
466.2 Places of public accommodation, resort or amusement 
466.3 Housing accommodations and commercial space
466.4 Volunteer fire departments and companies
466.5 Submission of plan to increase employment of members of minority groups
466.6 Access to personal information
466.7 Public access to records
466.8 Discrimination on the basis of sex or marital status in extension of credit
466.9 Index of interested persons
466.10 Procedure for declaratory rulings 
466.11 [See below]
466.12 Payment of civil fines and penalties in installments

Reasonable Accommodation & Appendix to Reasonable Accommodation

Download PdfGeneral Regulations 466.11 Reasonable Accommodation, and Appendix: Suggestions for Reasonable Accommodation Plan and Procedure (Printable Version)

466.11 Reasonable Accommodation
466.11 Appendix: Suggestions for Reasonable Accommodation Plan and Procedure

 

Section 466.1  Posting of notices by employers, employment agencies, labor or­ganizations and labor-management committees.

  (a)  Every employer, employment agency, labor organization, and labor-management committee subject to the Human Rights Law, shall post and maintain at is offices, places of employment or employment training centers, notices furnished by the Division of Human Rights, indicating the substantive provisions of the Human Rights Law, the place where complaints may be filed and such other information as the Division of Human Rights deems pertinent.

  (b)  With respect to employers and employment agencies, such notices must be posted conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment and at or near each location where the employees's services are performed or by applicants for or participants in apprentice­ship, on-the-job training or other training or retraining programs.

  (c)  With respect to labor organizations and labor-management committees, such notices must be posted conspicuously in easily accessible and well-lighted places cus­tomarily frequented by members and applicants for membership in the labor organiza­tions or by applicants for or participants in apprenticeship, on-the-job training or other training or retraining programs.

 

 466.2 Postings of notices at places of public accommodation, resort or amusement.

  (a)  Every person being the owner, lessee, proprietor or manager of any place of public accommodation, resort or amusement, subject to the Human Rights Law, shall post and maintain at such place of public accommodation, resort or amusement, notices furnished by the Division of Human Rights indicating the substantive provisions of the Human Rights Law, the place where complaints may be filed and such other information as the Division of Human Rights deems pertinent.

  (b)  Such notices must be posted conspicuously in easily accessible and well-lighted places at the place of public accommodation, resort or amusement where they may be readily observed by those seeking any of the accommodations, advantages, facilities or privileges of such place of public accommodation, resort or amusement.

 

 466.3   Posting of notices concerning housing accommodations and commercial space.

  (a)  Notices at housing accommodations.

            (1)  Every person being the owner, lessee, sub-lessee, assignee, or managing agent of housing accommodations subject to the Human Rights Law, shall post and maintain at such accommodations, notices furnished by the Division of Human Rights, indicating the substantive provisions of the Human Rights Law relative to housing accommodations, the place where complaints may be filed and such other information as the Division of Human Rights deems pertinent.

            (2)  Such notices must be posted conspicuously in easily accessible and well-lighted places at the housing accommodations, where they may be readily observed by those seeking such housing accommodations and/or facilities or services in connection therewith.

  (b)  Notices at sites of commercial space.

            (1)  Every person being the owner, lessee, sub-lessee or managing agent of commercial space, subject to the Human Rights Law, shall post and maintain it at the site of such commercial space, notices furnished by the Division of Human Rights, indicating the substantive provisions of the Human Rights Law relative to commercial space, the place where complaints may be filed and such other information as the Division of Human Rights deems pertinent.

            (2)  Such notices must be posted conspicuously in easily accessible and well-lighted places at the site of such commercial space where they may be readily observed by those seeking such commercial space or the facilities or services in connection therewith.

  (c)  Notices at real estate offices.

            (1)  Every person being a real estate broker or real estate salesman who has an office or office space in which he conducts his real estate transactions shall display and maintain at such office or in such office space notices furnished by the Division of Human Rights, indicating the substantive provisions of the Human Rights Law relative to housing accommodations and commercial space, the place where complaints may be filed and such other information as the Division of Human Rights deems pertinent.

            (2)  Such notices must be posted conspicuously at the real estate offices in easily accessible and well-lighted places, where the notices may be readily observed by those seeking housing accommodations or commercial space.

  (d)  Notices at lending institutions.

            (1)  Every bank, trust company, private banker, savings bank, industrial bank, savings and loan association, credit union, investment company, mortgage company, insurance company or other financial or lending institution, subject to the Human Rights Law, shall post and maintain at its public offices, notices furnished by the Division of Human Rights indicating the substantive provisions of the Human Rights Law relative to the financing of housing accommodations and commercial space, the place where complaints may be filed and such other information as the Division of Human Rights deems pertinent.

            (2)  Such notices must be posted conspicuously in easily accessible and well-lighted places in the public offices of such institutions where they may be readily observed by those seeking financial assistance.

 

 466.4 Posting of notices by volunteer fire departments and volunteer fire companies.

  (a)  Every volunteer fire department and volunteer fire company subject to the Human Rights Law shall post and maintain at its fire houses, fire stations, offices and meeting halls notices furnished by the Division of Human Rights, indicating the substantive provisions of the Human Rights Law, relating to membership in volunteer fire departments and volunteer fire companies, the places where complaints may be filed, and such other information as the Division of Human Rights deems pertinent.

  (b)  Such notices must be posted conspicuously in easily accessible and well-lighted places customarily frequented by volunteer firemen and applicants for membership in volunteer fire departments and volunteer fire companies.

 

 466.5   Submission of plan to increase employment of members of minority group.

  (a) Any employer, employment agency, labor organization or joint labor management committee may submit to the division in writing a plan intended to increase the employment of members of a minority group, pursuant to subdivision 12 of section 296 of the Human Rights Law.

  (b) The plan shall name the minority group or groups the increase of the employment of whose members is the object of the plan.

  (c) The plan shall set forth the steps to be taken to increase the employment of members of the minority groups covered and the period of time during which it is to be operative.

  (d) The plan shall not be based on, or result in, the discharge of any worker because of his non-membership in any such minority group.

  (e) The division will determine whether or not to approve the plan and may do so on the basis of information available to it, including reports made by its employees and official government reports.

  (f) The division statement of approval will be issued in writing and will set forth the period of time for which the plan may be operative. Such statement will specifically note the power of the division to rescind its approval of the plan at any time.

  (g) A copy of the plan, when approved, shall be filed in the offices maintained by the division at One Fordham Plaza, Bronx, New York 10458 and at the regional offices serving the regions in which the plan is to be operative. Such plans shall be open to public inspection during regular business hours of the division.

 

466.6   Access to personal information.

  (a) Purpose and scope.

            (1) It is the responsibility and the intent of the agency to fully comply with the provisions of article 6-A of the Public Officers Law, the Personal Privacy Protection Law.

            (2) The agency shall maintain in its records only such personal information that is relevant and necessary to accomplish a purpose of the agency that is required to be accomplished by statute or executive order, or to implement a program specifically authorized by law.

            (3) Personal information will be collected, whenever practicable, directly from the person to whom the information pertains.

            (4) The agency seeks to ensure that all records pertaining to or used with respect to individuals are accurate, relevant, timely and complete.

            (5) These regulations provide information regarding the procedure by which members of the public may assert rights granted by the Personal Privacy Protection Law.

  (b) Designation of privacy compliance officer.

            (1) The privacy compliance officer for the division is the division's freedom of information officer. This business address is: One Fordham Plaza, Bronx, New York 10458.

            (2) The privacy compliance officer is responsible for:

(i) assisting a data subject in identifying and requesting personal information, if necessary;

(ii) describing the contents of systems of records orally or in writing in order to enable a data subject to learn if a system of records includes a record or personal information identifiable to a data subject requesting such record or personal information;

(iii) taking one of the following actions upon locating the record sought:

(a) make the record available for inspection, in a printed form without codes or symbols, unless an accompanying document explaining such codes or symbols is also provided;

(b) permit the data subject to copy the record; or

(c) deny access to the record in whole or in part and explain in writing the reasons therefor;

(iv) making a copy available, upon request, upon payment of or offer to pay established fees, if any, or permitting the data subject to copy the records;

(v) upon request, certifying that a copy of record is a true copy; or

(vi) certifying, upon request, that:

(a) the agency does not have possession of the record sought;

(b) the agency cannot locate the record sought after having made a diligent search; or

(c) the information sought cannot be retrieved by use of the description thereof, or by use of the name or other identifier of the data subject without extraordinary search methods being employed by the agency.

  (c) Proof of identity.

            (1) When a request is made in person, or when records are made available in person follow-ing a request made by mail, the agency may require appropriate identification, such as a driver's license, a photograph or similar information that confirms that the record sought per-tains to the data subject.

            (2) When a request is made by mail, the agency may require verification of a signature by appropriate identification.

            (3) Proof of identity shall not be required regarding a request for a record accessible to the public pursuant to article 6 of the Public Officers Law.

  (d) Location.

            (1) Records shall be made available at the main office of the agency, which is located at: One Fordham Plaza, Bronx, New York 10458.

            (2) Whenever practicable, records shall be made available at a regional office most convenient to a data subject. Regional offices are located throughout the State, the addresses for which may be obtained from the main office of the agency.

  (e) Hours for public inspection and copying. The agency shall accept requests for records and produce records during regular business hours, which are 9 a.m.--5 p.m. on weekdays.

  (f) Requests for records.

            (1) All requests shall be made in writing, except that the agency may make records available upon an oral request made in person after the applicant has demonstrated proof of identity.

            (2) A request shall reasonably describe the record sought. Whenever possible, the data subject should supply identifying information that assists the agency in locating the records sought.

            (3) Requests based upon categories of information described in a notice of a system of re-cords or a privacy impact statement shall be deemed to reasonably describe the record sought.

            (4) Within five business days of the receipt of a request, the agency shall provide access to the record, deny access in writing explaining the reasons therefore, or acknowledge the receipt of the request in writing, stating the approximate date when the request will be granted or denied, which date shall not exceed 30 days from the date of the acknowledgment.

  (g) Amendment of records. Within 30 business days of a request from a data subject for correction or amendment of a record or personal information that is reasonably described and that pertains to the data subject, the agency shall:

            (1) make the amendment or correction in whole or in part and inform the data subject that, on request, such correction or amendment will be provided to any person or governmental unit to which the record or personal information has been or is disclosed pursuant to paragraph (d), (i) or (l) of subdivision 1 of section 96 of the Public Officers Law; or

            (2) inform the data subject in writing of is refusal to correct or amend the record, including the reasons therefor.

  (h) Denial of request for a record or amendment or correction of a record or personal information.

            (1) Denial of a request for records or amendment or correction of a record or personal information:

(i) shall be in writing, explaining the reasons therefor; and

(ii) identifying the person to whom an appeal may be directed.

            (2) A failure to grant or deny access to records within five business days of the receipt of a request or within 30 days of an acknowledgment or the receipt of a request, or a failure to respond to a request for amendment or correction of a record within 30 business days of receipt of such a request, shall be construed as a denial that may be appealed.

            (3) Any such denial may be appealed to the commissioner, who may decide the appeal him/herself or refer it to General Counsel, One Fordham Plaza, Bronx, New York 10458.

  (i) Appeal.

            (1) Any person denied access to a record or denied a request to amend or correct a record or personal information pursuant to subdivision (h) of this section may, within 30 days of such denial, appeal to the commissioner.

            (2) The time for deciding an appeal shall commence upon receipt of an appeal that identifies:

(i) the date and location of a request for a record or amendment or correction of a record or personal information;

(ii) the record that is the subject of the appeal; and

(iii) the name and return address of the appellant.

            (3) Within seven business days of an appeal of a denial of access, or within 30 days of an appeal concerning a denial of a request for correction or amendment, the person determining such appeals shall:

(i) provide access to or correct or amend the record or personal information; or

(ii) fully explain in writing the factual and statutory reasons for further denial and inform the data subject of the right to seek judicial review of such determination pursuant to article 78 of the Civil Practice Law and Rules.

            (4) If, on appeal, a record or personal information is corrected or amended, the data subject shall be informed that, on request, the correction or amendment will be provided to any person or governmental unit to which the record or personal information has been or is disclosed pursuant to paragraph (d), (i) or (l) of subdivision 1 of section 96 of the Public Officers Law.

            (5) The agency shall immediately forward to the Committee on Open Government a copy of any appeal made pursuant to this Part upon receipt, the determination thereof and the reasons therefor at the time of such determination.

(j) Statement of disagreement by data subject.

            (1) If correction or amendment of a record or personal information is denied in whole or in part upon appeal, the determination rendered pursuant to the appeal shall inform the data subject of the right to:

(i) file with the agency a statement of reasonable length setting forth the data subject's reasons for disagreement with the determination;

(ii) request that such a statement of disagreement be provided to any person or govern-mental unit to which the record has been or is disclosed pursuant to paragraph (d), (i) or (l) of subdivision 1 of section 96 of the Public Officers Law.

            (2) Upon receipt of a statement of disagreement by a data subject, the agency shall:

(i) clearly note any portions of the record that are disputed; and

(ii) attach the data subject's statement as part of the record.

            (3) When providing a data subject's statement of disagreement to a person or governmental unit in conjunction with a disclosure made pursuant to paragraph (d), (i) or (l) of subdivision 1 of section 96 of the Public Officers Law, the agency may also include a concise statement of its reasons for not making the requested amendment or correction.

(k) Fees.

            (1) Unless otherwise prescribed by statute, there shall be no fee charged for:

(i) inspection of records;

(ii) search for records; or

(iii) any certification pursuant to this Part.

            (2) Unless otherwise prescribed by statute, copies of records shall be provided:

(i) at a fee in the amount prescribed by Section 87 of the Freedom of Information Act; or

(ii) upon payment of the actual cost of reproduction, if the record or personal information cannot be photocopied.

            (3) The actual cost of reproduction shall be based upon the average unit cost for copying a record, excluding fixed costs of the agency, such as operator salaries and overhead.

(l) Severability. If any provision of this section or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of this section or the application thereof to other persons and circumstances.

 

466.7   Public access to records.

  (a) Public index. Pursuant to section 87.3 of the Freedom of Information Law, the division shall maintain and make available to the public an index of records. A copy of said index may be obtained from any office of the division during regular office hours.

  (b) Request for records. Any person may request to inspect and copy any record in the division's custody which is required to be made available. Such request shall be in writing and sent to the division by mail, facsimile or electronic mail. A form is available on the division's website, www.dhr.state.ny.us.

  (c) Inspection of records. Whenever feasible, records are to be made available for inspection at the division office where the request therefor was made. If the requested record is not located at such office, the request form shall be forwarded to the central office, which shall arrange for inspection. Inspection shall be permitted during regular office hours.

  (d) Fees.

(1) Unless otherwise prescribed by statute, there shall be no fee charged for:

(i) inspection of records;

(ii) search for records; or

(iii) any certification pursuant to this Part.

(2) Unless otherwise prescribed by statute, copies of records shall be provided:

(i) at a fee in the amount prescribed by Section 87 of the Freedom of Information Act; or

(ii) upon payment of the actual cost of reproduction, if the record or personal information cannot be photocopied.

(3) The actual cost of reproduction shall be based upon the average unit cost for copying a record, excluding fixed costs of the agency, such as operator salaries and overhead.

(4) If a copy of the transcript of a public hearing is requested, the division shall refer the applicant to the reporting service.

  (e) Appeal of denial of record. Any person denied access to a requested record may, within 30 days, appeal in writing to the commissioner. The commissioner may decide the appeal himself or herself or refer it to general counsel. If the commissioner or general counsel denies access to the requested record, his/her reasons shall be explained fully in writing within seven business days of the time of the appeal.

  (f) Designation of records access officer. The records access officer for the division is the division's freedom of information officer. His/her business address is: One Fordham Plaza, Bronx, New York 10458.

  (g) Duty of administrative officer. The administrative officer of the division shall maintain a record setting forth the name, public office address, title and salary of every officer or employee of the division, as required by section 87.3(b) of the Freedom of Information Law. He/she shall respond to and comply with requests for any such record made pursuant to the Freedom of Information Law. His/her business address is: One Fordham Plaza, Bronx, New York 10458.

 

 466.8 Discrimination on the basis of sex or marital status in extension of credit.

  (a)  Inquiries concerning marital history, status and number of dependents.  For purposes of Executive Law, section 296-a(l)(c), it shall not be considered an expression of limitation, specifications or discrimination on the basis of sex or marital status if:

            (1)  a creditor requires an applicant to disclose the name or names by which he or she has previously been known, provided that this information is used solely to determine the applicant's identity and previous credit history;

            (2)  where application is made for a mortgage and the creditor determines that the signature of the spouse is required in order to pass clear title in the event of a default, a creditor requests information concerning marital status, provided that the information disclosed by such inquiry is used solely for the purpose of perfecting title;

            (3)  a creditor inquires as to the number of the applicant's dependents, provided that the information disclosed by such inquiry is used solely to determine costs and expenses payable by the applicant.

  (b)  Statement of reasons for rejection.  For purposes of Executive Law, section 296-a(4)(a), a statement of the specific reasons for rejection of an application for credit shall be deemed to be in compliance with this section if It is a clear and meaningful statement of all of the factors which justified rejection.

  (c)  Attribution of past joint obligations.  For purposes of Executive Law, section 296-a(4)(b), a response to a request for a separate credit history, made after July 15, 1974, shall include all obligations, whenever entered into, as to which the creditor or credit reporting bureau then has information in its files.  In creating such a separate history, all obligations on which two parties were jointly liable shall be reported as the obligation of each, irrespective of the actual source of payments.

 

466.9   Index of interested persons.

Persons or agencies interested in receiving notice of proposed rule making by the State Division of Human Rights may file with the division a written request that they be notified by mail of any proposed rule making.  The request shall specify the address to which notice is to be mailed.  Such request must be renewed yearly in December.

 

466.10 Procedure for declaratory rulings.

   (a) Upon petition of any person, the State Division of Human Rights may issue a declaratory ruling with respect to the applicability to any person, property or state of facts of any rule or statute enforceable by it.

  (b) To obtain a declaratory ruling, a formal request in writing entitled "Petition for a Declaratory Ruling pursuant to State Administrative Procedure Act, section 204" must be submitted to the Commissioner of Human Rights.

  (c) The commissioner may, in his/her sole discretion, issue a declaratory ruling. Nothing shall be deemed a declaratory ruling unless it is entitled as such, is in writing and is signed by the commissioner.

  (d) Every declaratory ruling shall be made available to the public. A declaratory ruling shall be subject to review in the manner provided for in article 78 of the Civil Practice Law and Rules.

 

466.12 Payment of civil fines and penalties in installments by employers of fewer than fifty employees.

(a)        Statutory Authority. Pursuant to N.Y. Executive Law § 297.4(c), where the Commissioner finds that a respondent has engaged in any unlawful discriminatory practice, the Commissioner shall issue an order which may include, inter alia, the assessment of civil fines and penalties, in an amount not to exceed fifty thousand dollars, to be paid to the State by a respondent found to have committed an unlawful discriminatory act, or not to exceed one hundred thousand dollars to be paid to the State by a respondent found to have committed an unlawful discriminatory act which is found to be willful, wanton or malicious. § 297.4(c)(vi). Pursuant to Executive Law § 297.4(e), in cases of employment discrimination where the employer has fewer than fifty employees, such civil fine or penalty may be paid in reasonable installments, with reasonable interest resulting from the delay, and in no case may installments be made over a period longer than three years. Executive Law § 297.4(e) further requires the Division to promulgate regulations regarding installment payments.

(b)        Installment payments; general. Any Commissioner's order assessing civil fines and penalties shall be made in accordance with the following:

(1)        Civil fines and penalties shall be due no later than 60 days from the date of the Commissioner's order, unless payment in installments has been requested and ordered.

(2)        Where the employer has fewer than fifty employees, and makes application in accordance with the provisions of paragraph (c) of this section, payment may be ordered in installments, in accordance with paragraph (d) of this section.

(c)        Application for payment in installments.

(1)        Payment in installments will only be ordered upon application of the respondent employer.

(2)        Application for payment in installments shall be made (i) orally or in writing on the re-cord at the public hearing, or (ii) may be included in any written objections to the Administrative Law Judge's recommended order, filed pursuant to the Division's Rules of Practice, 9 N.Y.C.R.R. § 465.17(c).

(3)        The burden of proof on the issue of whether the employer has fewer than fifty employees rests with the employer, who is responsible to offer evidence on the issue into the record in accordance with the Division's Rules of Practice, 9 N.Y.C.R.R. § 465.12(e) (“Form and content of proof”), 9 N.Y.C.R.R. § 465.12(i) (“Hearing record”), and 9 N.Y.C.R.R. § 465.17(c) (“Preparation and order”).

(d)        Commissioner's order after hearing assessing civil fines payable in installments; required content. Any Commissioner's order assessing civil fines and penalties, and providing that such civil fines and penalties are payable in installments by an employer of fewer than fifty employees, shall be made in accordance with the following:

(1)        Payment shall be made in no more than three installments, in such form as the Division may now or in future be able to accept, and as specifically directed in the order.

(2)        The amount and due date of each installment shall be explicitly stated in the Commissioner's order.

(3)        The final payment shall be due no later than three years from the date of the Commissioner's order.

(4)        The first installment shall be due 60 days from the date of the Commissioner's order, unless otherwise provided in the discretion of the Commissioner.

(e)        Interest. Any portion of civil fines and penalties paid within 60 days after the date of the Commissioner's order shall not accrue any interest. Interest on any remaining installments may be reduced on all or any portion of an installment by paying in advance of the due dates. Any portion or installment of civil fines and penalties paid after 60 days from the date of the Commissioner's order shall accrue interest, from the date of the Commissioner's order to the date of payment, at the rate set forth in CPLR § 5004. Any other provision of law, applicable to the employer or the facts of the case, which indicates a different rate of interest is applicable, may be taken into consideration in the discretion of the Commissioner.

 

Reasonable Accommodation & Appendix to Reasonable Accommodation

 

466.11 Provision of "reasonable accommodation" by employers, pursuant to Human Rights Law §292.21, §292.21-e, §295.5, §296.3 and §296.3-a.

(a)        Reasonable accommodation.

(1)        Reasonable accommodation is defined in the Human Rights Law at §292.21-e, as follows:

The term "reasonable accommodation" means actions taken which permit an employee, prospective employee or member with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held and include, but are not limited to, provision of an accessible worksite, acquisition or modification of equipment, support services for persons with impaired hearing or vision, job restructuring and modified work schedules; provided, however, that such actions do not impose an undue hardship on the business, program or enterprise of the entity from which action is requested.

(2)        Reasonable accommodations may include, but are not limited to: making existing facilities more readily accessible to individuals with disabilities; acquisition or modification of equipment; job restructuring; modified work schedules; adjustments to work schedule for treatment or recovery; reassignment to an available position; adjustment of examinations, training materials or policies; providing readers or interpreters.

(3)        Reasonable accommodation does not include among other things: providing for personal care needs, such as a personal care assistant, although such a personal care assistant should be accommodated where provided by the employee at no cost to the employer; providing non-work-related aids, such as a personal hearing aid or wheelchair, which are the employee's own responsibility.

(b)        Determination of reasonableness.

(1)        Whether an accommodation that has been requested or is under consideration is a "reasonable accommodation" required by the Human Rights Law will turn on a balancing of the following factors:

(i)         efficacy or benefit provided by the accommodation toward removing the impediments to performance caused by the disability,

(ii)        convenience or reasonableness of the accommoda­tion for the employer, including its comparative convenience as opposed to other possible accommo­da­tions, and

(iii)       the "hardships", costs, or problems it will cause for the employer, including those that may be caused for other employees.

(2)        Accommodations that pose an "undue hardship" on the employer will not be required.  "Undue hardship" means significant difficulty or expense to the employer.  In determin­ing whether an accommodation would result in undue hardship, consideration will be given to any relevant factor. Relevant factors can include, but are not necessarily limited to, those set forth in the Human Rights Law, at §296.3(b):

(i)         The overall size of the business, program or enterprise with respect to the number of employees, number and type of facilities, and size of budget;

(ii)        The type of operation which the business, program or enterprise is engaged in, including the composition and structure of the workforce; and

(iii)       The nature and cost of the accommodation needed, including consideration of any money available from other sources to assist the employer in paying the cost.

(c)        Covered disabilities.

(1)        The Human Rights Law protects from discrimination those individuals with disabilities which, with or without reasonable accommodation, do not prevent the individual from performing the duties of the job in a reasonable manner.  The  definition of "disability" in the Human Rights Law is more comprehensive than that under federal law in that it covers many conditions that have been found to be not a disability under the federal Americans with Disabilities Act.

(2)        The term "disability" is defined in the Human Rights Law at §292.21 to mean:

(i)         a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or

(ii)        a record of such an impairment or

(iii)       a condition regarded by others as such an impairment.

With regard to employment, the term is limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.

(3)        Not every disability covered by the Human Rights Law will  require the consideration of reasonable accommodations.  Only those disabilities which actually impede, as a matter of fact, the individual in performing the job will give rise to a consideration of accommodation.  This is understood to include those situations in which the job impedes the individual's recovery or ability to obtain treatment, and accommodation can make recovery or treatment possible while the individual continues to be employed.

(d)        Who is entitled to a reasonable accommodation.

(1)        To be entitled to the protection of the Human Rights Law, the disabled individual must have the requisite job qualifica­tions as well as be able to satisfactorily perform in the job.

(i)         The disabled individual must be otherwise qualified for the job by education, skill, experience, ability, etc., to the same extent that such education, skill, experi­ence, ability, etc., are required as bona fide job qualifications for nondisabled applicants or employ­ees. See further, paragraph (f)(4) of this section.

(ii)        The disabled individual must be able, with or without accommoda­tion, to attain "reasonable performance".  Reasonable perform­ance is not perfect performance or performance unaffect­ed by the disability, but reasonable job performance, reasonably meeting the employer's needs to achieve its business goals.  See further, paragraphs (f)(1)-(3) of this section.

(2)        To be entitled to a reasonable accommodation, the individual must meet the qualification and performance standards set forth in paragraph (1) of this subdivision, and must have a disability and a need for an accommodation which are known, or are made known, to the employer.

(e)        Circumstances giving rise to the requirement that the employer consider reasonable accommodation, in accordance with the factors set forth in subdivision (b) of this section.

(1)        Reasonable accommodation must be considered where the disability and need for accommodation are known to the employer.

(2)        Reasonable accommodation must be considered when a qualified applicant or employee with a disability informs the employer of the disability (if the employer does not already know of its existence) and requests an accommodation.

(3)        Reasonable accommodation must be considered when a current employee with a disability informs the employer of the disability (if the employer does not already know of its existence) and requests an accommodation, even if there has been no change in the employee's medical condition.

(f)        Ability to reasonably perform the "activities involved in the job or occupation"; job restructuring.

(1)        Ability to reasonably perform the "activities involved in the job or occupation" means the ability, with or without accommodation, to satisfactorily perform the essential functions of the job or occupation.  See further, subparagraph (d)(1)(ii) of this section.

(2)        Satisfactory performance means minimum acceptable performance of the essential functions of the job as established by the employer.  The employer's judgment as to what is minimum acceptable performance will not be second-guessed, so long as standards for performance are applied equivalently to all employees in the same position.  Such standards for satisfac­tory performance may include minimum productivity standards or quotas.

(3)        Essential functions are those fundamental to the position; a function is essential if not performing that function would fundamentally change the job or occupation for which the position exists.  What is an essential function is a factual question to be resolved by all relevant evidence.  Evidence for determining the essential functions of a particular position would include, but would not be limited to, the following:

(i)         the employer's judgment as to which functions are essential, particularly where so indicated in a pre-existing written job description;

(ii)        how often the function is actually performed by other employees in the position;

(iii)       how many other employees are available to whom the function could be reallocated by job restructuring;

(iv)       the direct and specific consequences to the employer's business if the function is not performed by the particular disabled individual;

(v)        the terms of a collective bargaining agreement.  (Labor organizations are also required to reasonably accommodate the disabilities of a member, pursuant to §296.3.)

(4)        When an employer fills a position with a specific purpose of acquiring special ability or expertise (for example: technical expertise, foreign language skill, physical strength in a firefighter), even if the amount of time actually spent on the job using the special ability or expertise is small, this ability or expertise is a bona fide qualifica­tion for the job.  See further, subparagraph (d)(1)(i) of this section.

(5)        As is true in any area covered by the Human Rights Law, the employer may hire the applicant who is most qualified with regard to the bona fide job qualifications, and is not required to hire a disabled applicant simply because the applicant meets the minimum job qualifications if there are other more qualified applicants.

(6)        The Human Rights Law does not require, as a reasonable accommodation in the form of job restructur­ing, the creation of a completely unique position with either qualifications or functions tailored to the disabled individual's abilities.

(7)        Reasonable accommodation, in the form of job restructur­ing, is required if a disabled individual meets the bona fide job qualifica­tions, and can satisfactorily perform the essential functions of the position; the duties that the disabled individual cannot perform due to the disability, and that are not essential to the position, must not be required of the disabled individual.

(g)        Safety concerns; objectionable behaviors.

(1)        The Human Rights Law does not require accommo­dation of behaviors that do not meet the employer's workplace behavior standards that are consistently applied to all similarly situated employees, even if these behaviors are caused by a disability.  This would include, but not be limited to:

(i)         dress codes, grooming standards and time and attendance policy, though reasonable and necessary deviations must be allowed as accommodations;

(ii)        conduct standards, including those which prohibit aggressive or threatening behavior;

(iii)       discipline for theft of company property by a kleptomaniac;

(iv)       discipline for intoxication or impairment on the job by an alcoholic.

(2)        Reasonable accommodation is not required where the disab­il­i­ty or the accommodation itself poses a direct threat.

(i)         "Direct threat" means a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.

(ii)        In determining whether a direct threat exists, the employer must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective information, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable accommodations, such as modification of policies, practices, or procedures, will mitigate the risk.

(iii)       Some jobs may have a bona fide classification as "safety sensitive", such as, for example, vehicle operators or persons who work with children.  Heightened consideration of direct threat is to be encouraged in bona fide safety sensitive jobs.

(h)        Drug addiction and alcoholism.

(1)        Alcoholism and drug addiction are diseases.  However, an individual who is currently using drugs illegally (see paragraph (4) of this subdivision), is not protected in this regard by the Human Rights Law.  The Law does protect an individual who is a recov­ered/recovering alcoholic or drug addict.

(2)        Adjustments to the work schedule, where needed to allow for ongoing treatment, must be allowed as an accommodation where reasonable, if the individual is still able to perform the essential functions of the job including predictable and regular attendance.

(3)        The recovered/recovering alcoholic or drug addict should be expected to perform job tasks just as anyone else with similar skills, experience and background.

(4)        Where the employer has knowledge of the current illegal use of drugs, the employee is not entitled by law to accommod­a­tion, and may be terminated.

(i)         "Current illegal use of drugs" means illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem.

(ii)        In determining whether recent use is enough to justify a reasonable belief in current use, the individual's successful participation in a program for rehabilita­tion or recovery since the recent use is relevant.

(5)        Employers are encouraged, where the employer knows of current illegal use of drugs, or where job performance of an alcoholic or drug addict deteriorates to below acceptable standards, to utilize the practice of leave of absence and required attendance at a rehabilitation program, along with a "last chance" agreement requiring acceptable performance and attendance upon return.  If an employee denies the problem and refuses the leave, treatment and last chance agreement, the employee may be terminated or disciplined for the documented performance problems.

            (6)        Drug testing.

(i)         A test to determine the illegal use of drugs is not to be considered a medical test.

(ii)        Nothing in these regulations is to be construed to encourage, prohibit, or authorize the conducting of drug tests for the illegal use of drugs by job applicants or employees, or the making of employment decisions based on the test results.

(iii)       Nothing in these regulations is to be construed to encourage, prohibit, restrict or authorize the otherwise lawful exercise by entities subject to the jurisdiction of the United State Department of Transportation, of authority to test applicants for or employees in safety sensitive positions for the illegal use of drugs or for on-duty impairment by alcohol, or to remove persons who test positive from safety sensitive duties.

(iv)       Any information regarding the medical condition or history of any applicant or employee obtained from a drug test, except information regarding illegal use of drugs, must be kept confidential, and may not be used in any way to the disadvantage of the applicant or employee.

(i)         Temporary disabilities.

(1)        A current employee experiencing a temporary disability is protected by the Human Rights Law where the individual will be able to satisfactorily perform the duties of the job after a reasonable accommodation in the form of a reasonable time for recovery.

(2)        The Human Rights Law requires no more than de minimis accommo­dations for temporary disabilities in the areas of worksite accessibil­ity, acquisition or modification of equipment, job restructuring, or support services for persons with temporarily impaired hearing or vision.

(3)        The Human Rights Law may require reasonable accommodation of temporary disabilities in the areas of modified work schedules, reassignment to an available position or available light duty, or adjustments to work schedules for recovery.  The employer's past practice, pre-existing policies regarding leave time and/or light duty, specific workplace needs, the size and flexibility of the relevant workforce, and the employee's overall attendance record will be important factors in determining reasonable accommodation in this context.

(j)         Rights and duties of the employer.

(1)        The employer must not make pre-employment inquiries with regard to the existence of a disability or need for accommoda­tion. The employer should provide information to applicants and new employees as to their rights with regard to reasonable accommodation of disability, and as to procedures to be followed in requesting reasonable accommodation.

(2)        The employer should advise all current employees on a regular basis as to their rights with regard to reasonable accommodation of disability, and as to procedures to be followed in requesting reasonable accommodation.

(3)        The employer has the duty to reasonably accommodate known disabilities, where the need for the accommodation is known.

(4)        The employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested.  The employer has the duty to clearly request from the applicant or employee any documentation that is needed.

(5)        Once an accommodation is under consideration, the employer has the right to medical or other information that is necessary to verify the existence of the disability or that is necessary for consideration of the accommodation.  The employer must maintain the confidentiality of individuals' medical information.

(6)        The employer has the right to select which reasonable accommodation will be provided, so long as it is effective in meeting the need.

(7)        It is recommended that the employer have a written policy and procedure for reasonable accommodation of disability.  A sample procedure is available from the Division.

(k)       Rights and duties of the employee.

(1)        The employee must make the disability and need for accommodation known to the employer.

(2)        An employee with a disability has a right to request an accommodation at any time, even if his/her medical condition has not changed.

(3)        The employee must cooperate with the employer in the consideration and implementation of the requested reasonable accommodation.

(4)        The employee must cooperate in providing medical or other information that is necessary to verify the existence of the disability or that is necessary for consideration of the accommodation.  The employee has a right to have his/her medical information kept confidential.

(5)        The employee has the right to refuse an accommodation despite the existence of a disability, if the employee can perform the job in a reasonable manner without the accommodation.

 

466.11 Appendix: Suggestions for Reasonable Accommodation Plan and Procedure

For implementation of the employer's duty to reasonably accommodate employees and applicants with disabilities, pursuant to Executive Law (Human Rights Law) §296, §292.21, and §292.21-e.

A written policy or plan with regard to reasonable accommoda­tion is not required by law. However, it is recommended that employers develop a Reason­able Accommodation Plan. Use of such a procedure will not provide a guarantee against a later finding that a denial was in violation of the law, but should guard against inadvertent or uninformed denials of reasonable accommodations, and will provide a record that will be useful to the employer in establish­ing factually why a denied accommodation was unreasonable. The Plan should contain at a minimum, three elements:

a formal statement that it is the policy of the employer to provide reasonable accommodations to employees and         applicants with disabilities,

a written "Procedure for Processing Reasonable Accommodation Requests" which is disseminated to all staff, and

a program designed to provide information to managers, supervisors, and staff about the concept of, and legal         requirement for, reasonable accommo­dation.

Various resources are available, in the local community or from various state agencies, to help provide staff training, at little or no cost.

Sample Procedure

Employers may find that a uniform set of guidelines for reviewing reasonable accommodation requests will serve the best interests of the company and its employees. A procedure will also provide a framework with a definite beginning and end; if the employer proceeds with the procedure with reasonable diligence, questions of whether an accommodation has been denied or is still under consider­ation will not arise, and filing of unnecessary complaints will be forestalled. Taking time to consider a request may appear as a denial and generate conflict, if the steps in a procedure cannot be referenced. The following sample procedure assumes the request is from a current employee, but the procedure should be adapted for use also by an applicant who wishes to request an accommodation.

The process of accommodation starts when the employee makes his/her request in writing and returns the request to the supervi­sor. If the employee has difficulty with written communication, or is not sure how to explain the impediment to job performance he/she is experiencing, or is unsure of what accommodation to request, the supervisor should assist the employee in an initial consultation. The employee's initial inquiry about accommodation or disability-related performance difficulties puts the employer on notice, and triggers the requirement to seek accommodation. Therefore, the technicality of filling out the request adequately to start the process cannot be allowed to block the employee's access to accommo­dation. Once the request has been submitted, adequately identifying the accom­modation requested, or at least the problem to be addressed, the supervisor evaluates the request and either approves or is unable to make a decision.

If the supervisor approves the request, the accommodation is made and an approval memorandum is sent to the designated company representative, (e.g., human resources representative or EEO Coordinator). The process is ended. If the supervisor is unable to make a decision, the request, with the supervisor's com­ments, is sent to the designated company representa­tive who will conduct a comprehensive review of the request. The employee should be notified of this next step by the supervisor.

It is anticipated that most requests for accommodation can be approved at the supervisory level. Some accommodation requests are very simple and can easily be accomplished by the supervisor. Some examples may include the removal of barriers from aisles for an employee who is blind, raising a desk with small blocks if an employee uses a wheelchair, or granting permission for extended break times if the employee requires a longer rest period, with the time charged, or made up, in some agreed-upon manner.

There may be times, however, when a supervisor lacks the authority or the needed information to recommend that a particular accommodation be made. For example, these accommodations may require monetary expenditures, such as when adaptive equipment needs to be purchased or when requests are made for shift changes or flextime or part-time schedules. In these instances, the supervisor may choose to defer to the designated company represen­tative for further review.

In instances where further review is required, the designated company representative must then assess all relevant documentation. This may include asking for additional medical and/or other documentation from the employee, meeting with the employee and/or the supervisor, contacting the Job Accommoda­tion Network, or other source of experience and expertise, for specific accommoda­tion information, arranging for a job analysis, or consulting with community-based organizations who provide services to people with disabilities. It is important to note that medical documentation should be received by the desig­nated company representative and not the supervisor. This will help avoid breach of the employ­ee's privacy.

The designated company representative may also at times need to obtain input from the company's fiscal officer or legal counsel. In a word, all available resources should be used at this stage to resolve the accommodation request.

If the accommodation is to be provided, the designated company representa­tive consults with the supervisor and informs the employee in writing.

If the accommodation is to be denied, the designated company representa­tive consults with the supervisor and notifies the employee in writing. In the notification, the employee is informed that this decision will be automatically reviewed by a compliance review committee. This committee consist of a repre­sentative from human resources, counsel's office, an employee work group or organiza­tion, or any other representative deemed to be appropriate. This review body is advisory in nature and the final decision to grant or deny the accommoda­tion rests with the company owner or the CEO or other highest level managing officer.

After completion of the review, the final decisionmaker informs the employee in writing of the final decision. If the decision is to deny the accommodation, additional recourse should be delineated to the employee such as filing a discrimi­na­tion complaint with state or federal agencies if the employee believes the company's denial was based on discrimination.

To summarize:

Step 1: Employee requests an accommodation by submitting the request for accommodation to the supervisor.

Step 2: Supervisor approves, and the process is completed. Or, Supervisor does not approve, and the request is forwarded to the designated company representative.

Step 3: The designated company representative conducts a comprehensive review and analysis, including gathering information from the employee (including medical certification where needed) and from other sources.

Step 4: The designated company representative approves, and the process is completed. Or, the representative does not approve, and advises the employee of the denial, and of the reasons for the denial, and informs the employee that there will be a review of this decision by the compliance review committee and the owner, CEO or other managing officer of the company.

Step 5: The compliance review committee reviews the results of designated company representative's review, analysis and decision, and reports to the owner, CEO or managing officer.

Step 6: The owner, CEO or managing officer of the employer advises the employee of the employer's final decision, and if it is to confirm the denial, the employee is advised of his/her legal rights.

The above sample procedure will of course need to be modified to suit the needs, size, and structure of particular employers.