The New York Court of Appeals’ recent decision in Jacobsen v. N.Y.C. Health & Hosps. Corp., No. 34, 2014 N.Y. LEXIS 570 (Mar. 27, 2014), stresses the need for employers responding to requests for accommodation by employees with disabilities to engage in a thoughtful, individualized, interactive process that it also well documented.  Failure by the employer to appropriately meet either responsibility will make it increasingly difficult to prevail against claims under the NYSHRL or NYCHRL on summary judgment, thus subjecting the employer to a trial.

Jacobsen, a long-time employee of NYC Health and Hospitals Corporation (“HHC”) who had been diagnosed with an occupational lung disease caused by repeated exposure to asbestos or dust particles, requested a reassignment to a location that would require fewer site visits (where he had previously worked) and the use a special respirator (fitted by an industrial hygienist) for use in the field.  HHC rejected both requests, returned Jacobsen to his prior location, and only provided him with a commonly available dust mask.  Later, after further exposure to the same conditions aggravated Jacbosen’s condition, his doctor deemed him unable to return to work, and following the expiration of his unpaid medical leave, HHC fired him.

Jacobsen sued and a state trial court granted summary judgment in favor of HHC on both the NYSHRL and NYCHRL claims.  This decision was affirmed by an intermediate state court.  In reversing and remanding the lower court’s decision, the NY Court of Appeals found that factual issues existed regarding HHC’s consideration of Jacobsen’s requested accommodations and the reasonableness of the accommodation it chose to provide instead.  The court noted that the employer’s level of effort in engaging in the interactive process is a relevant factor in determining whether the accommodations requested by the employee are reasonable.  Therefore, employers who fail to appropriately assess the requested accommodations cannot prevent an employee from bringing a claim for failure to accommodate under the NYSHRL and NYCHRL.

Ultimately, the Jacobsen decision does not radically alter the existing landscape.  When an employer faces a request for a reasonable accommodation it needs to make a good faith effort to engage in the interactive process.  This should include a legitimate, individualized assessment of the employee’s request and, if it is to be rejected, sufficient research to determine that any alternative accommodation by the employer will be reasonable.  The end result of this assessment can still be to reject the employee’s requested accommodation, provided the employer offers a reasonable alternative accommodation.  With this in mind, the decision also underscores the need for employers to carefully and thoughtfully document their efforts during the interactive process – including accommodations proposed by the employee that it considers and rejects.  An employer at the summary judgment stage who cannot demonstrate that it engaged in the interactive process and at least considered the employee’s requested accommodation runs a real risk that, under Jacobsen, it will now go to trial on NYSHRL and NYCHRL claims.