Working with a medical condition in New York

Which laws protect me?

Usually more than one, and they apply at the same time. You do not have to choose one. Every law that covers your employer applies, so in practice you get the benefit of whichever is most protective, and for most New York workers that is State or City law, not federal law. Federal law sets a minimum, New York State adds to it, and if you work in New York City the City adds more.

Sources: 42 U.S.C. § 12111(5) (ADA); 42 U.S.C. § 2000gg(2) (PWFA); 29 U.S.C. §§ 2611(2), (4), 2612(a), 2614 (FMLA); Exec. Law § 292(5) (State Human Rights Law); Labor Law § 196-b; Workers’ Comp. Law §§ 203-b, 204, 205 (disability benefits and Paid Family Leave); Admin. Code § 8-102 (City Human Rights Law). The FMLA also requires that your employer have 50 employees within 75 miles of your worksite.

Is my condition a “disability”?

Under New York law, almost certainly, if a doctor can diagnose it. The three laws define disability differently, and the difference matters most when an employer argues your condition is not serious enough to count.

• Federal (ADA). An impairment that “substantially limits one or more major life activities,” a record of one, or being regarded as having one (42 U.S.C. § 12102(1)). Since 2008 the definition must be “construed in favor of broad coverage” (§ 12102(4)(A)). A condition that comes and goes, or is in remission, counts if it would be substantially limiting when active (§ 12102(4)(D)), and the effect of medication or other treatment is ignored in deciding whether it is limiting (§ 12102(4)(E)). One limit survives the 2008 amendments: a condition that keeps you from doing only one particular job, or from working under particular supervisors, does not substantially limit the activity of working (Woolf v. Strada, 949 F.3d 89, 94–95 (2d Cir. 2020), affirming judgment for the employer).
• New York State. A physical, mental or medical impairment that prevents a normal bodily function or “is demonstrable by medically accepted clinical or laboratory diagnostic techniques” (Exec. Law § 292(21)). There is no requirement that it substantially limit anything. For employment, it covers conditions that, with reasonable accommodation, still let you do the job in a reasonable manner. The Division of Human Rights says the State definition “covers many conditions that have been found to be not a disability under the Federal Americans with Disabilities Act” (9 NYCRR 466.11(c)(1)). The Court of Appeals has held that it reaches conditions that are “merely diagnosable medical anomalies,” and that an employer may not act on a condition simply because it was detected before it caused any symptoms (State Div. of Human Rights v Xerox Corp., 65 N.Y.2d 213, 219 (1985), affirming a finding of discrimination). There does have to be a diagnosable condition, though: weight alone, without one, is not a disability (Matter of Delta Air Lines v New York State Div. of Human Rights, 91 N.Y.2d 65, 73 (1997), affirming the annulment of an agency finding for the employees).
• New York City. “[A]ny physical, medical, mental or psychological impairment, or a history or record of such impairment,” including an impairment of any system of the body (Admin. Code § 8-102). This is the broadest of the three.

Pregnancy is not itself a disability under these laws. It has its own protections, described below.

Do I have to tell my employer about my condition?

No, not unless you want something because of it. You have no general duty to disclose a diagnosis. But an employer’s duty to accommodate turns on what it knows, so if you need a change at work, you have to make the need known. The State regulation puts it plainly: the employee “must make the disability and need for accommodation known to the employer” (9 NYCRR 466.11(k)(1)). City law is broader. It applies when the disability “is known or should have been known” (Admin. Code § 8-107(15)(a)), and the duty to talk about an accommodation arises when the employer “has notice” you may need one, even if you have not asked (§ 8-107(28)(a)). Federal law reaches the same place for a disability that is obvious: the Second Circuit has held that an employer must accommodate a disability it “knew or reasonably should have known” about, even if the employee never asked, and must then engage in the interactive process (Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135–36 (2d Cir. 2008), affirming a jury verdict for the employee).

What your employer may ask is limited too.

• Medical questions. An employer covered by the ADA may not ask a current employee whether they have a disability, or about its nature or severity, or require a medical exam, unless the question is “job-related and consistent with business necessity” (42 U.S.C. § 12112(d)(4)(A)).
• Accommodation requests. Once you ask for an accommodation, the employer may ask for the medical information needed to confirm the condition and consider the request. You must cooperate in providing it. You have a right to have it kept confidential (Exec. Law § 296(3)(d); 9 NYCRR 466.11(j)(5), (k)(4)). The City Commission’s guidance says the employer is entitled to documentation of the condition, the limitation, and how the accommodation helps, not to your full medical file (NYC Commission on Human Rights, Disability Discrimination Legal Guidance).
• Sick leave. An employer “may not require the disclosure of confidential information” about your or a family member’s illness as a condition of giving you sick leave or prenatal leave (Labor Law § 196-b(5)(a)).

How do I ask for an accommodation?

Ask, preferably in writing, and say what your limitation is and what would help. There are no magic words, and you do not have to use the word “accommodation.” An email to your manager or HR that says “because of my condition I need X” is enough to start the process. Keep a copy. A worker who told HR he needed “a couple weeks” to see a specialist, without ever saying “leave of absence,” could be found by a jury to have asked for one, which the employer then had a duty to investigate (Graves v. Finch Pruyn & Co., 457 F.3d 181, 185–86 (2d Cir. 2006), vacating summary judgment on that claim).

Be as specific as you can. Describe what you cannot do and what would let you do the job: a schedule change, a different task, equipment, time off with an expected return date. Vague requests lose. In one case the court dismissed the claim of an employee whose doctor wrote only that she hoped for “a less stressful position,” holding that she “neither specified the accommodations sought nor showed that she could perform a particular job” (Pimentel v Citibank, N.A., 29 A.D.3d 141, 148–49 (1st Dep’t 2006), granting the employer summary judgment over a dissent). That decision predates the 2019 amendments to the State law, but the practical lesson holds.

What happens next depends on where you work.

• Everywhere in New York State. The employer “has a duty to move forward to consider accommodation once the need for accommodation is known or requested,” and it has “the duty to clearly request” any documentation it needs (9 NYCRR 466.11(j)(4)). You can ask “at any time,” even if your condition has not changed (466.11(k)(2)). The employer may choose among accommodations, as long as the one it picks is effective (466.11(j)(6)). The Appellate Division has held that under the State law, too, “the first step in providing a reasonable accommodation is to engage in a good faith interactive process,” and that an employer cannot conclude nothing will work without first doing so; “at least some deliberation” does not permit “a haphazard approach” (Hosking v Memorial Sloan-Kettering Cancer Ctr., 186 A.D.3d 58, 62–63, 66–67 (1st Dep’t 2020), affirming denial of the employer’s summary judgment motion).
• In New York City. The employer must engage in a “cooperative dialogue” with you “within a reasonable time” (Admin. Code § 8-107(28)(a)). It is a good-faith exchange about your needs, the options including alternatives, and any difficulty they pose (§ 8-102). At the end, the employer must give you “a written final determination identifying any accommodation granted or denied” (§ 8-107(28)(d)). It may conclude that no accommodation would work only after that dialogue has happened or been attempted (§ 8-107(28)(e)). Failing to engage in the dialogue is a violation in its own right, separate from failing to accommodate (§ 8-107(28)(f)). The City Council added that rule in 2018 to change the result of a Court of Appeals decision holding that a failure to engage was not a claim of its own (Hosking, 186 A.D.3d at 63–64).
• Under federal law. The ADA regulations describe an “informal, interactive process” with the employee (29 C.F.R. § 1630.2(o)(3)). Federal law is less protective here. The employer may pick among effective accommodations and need not give you the one you prefer, and if what it provided was plainly reasonable, skipping the process is not a separate violation (Noll v. International Business Machines Corp., 787 F.3d 89, 95, 98 (2d Cir. 2015), affirming judgment for the employer).

Who has to prove what. An accommodation is not required if it would impose an “undue hardship” on the employer. Under State law, hardship must be “demonstrated,” judged by the employer’s size, the kind of operation and the cost (Exec. Law § 296(3)(b)). City law says outright that “[t]he covered entity has the burden of proving undue hardship” (Admin. Code § 8-102). It also makes it the employer’s defense to prove that you could not do the essential parts of the job even with an accommodation (§ 8-107(15)(b)). The City Commission’s guidance treats every accommodation as presumptively reasonable, including leave and remote work, and rejects blanket policies such as “no remote work” as a reason to deny one (NYC Commission on Human Rights, Disability Discrimination Legal Guidance).

What if I cannot do part of my job?

The question is whether you can do the essential functions of the job, with or without an accommodation (42 U.S.C. § 12111(8)). Duties that are not essential can be reassigned. The State regulation says duties you cannot perform because of the disability, and that are not essential, “must not be required” of you (9 NYCRR 466.11(f)(7)). Whether a duty is essential is a question of fact. It depends on the written job description, how often the task is actually done, whether others can do it, and what happens if you do not (466.11(f)(3)). Courts look at how the job is actually done, not only at the job description. The Second Circuit held that arriving at a fixed time is not, as a matter of law, an essential function of every job, and revived the claims of a caseworker disciplined for lateness caused by his medication, where a flexible schedule had long been tolerated (McMillan v. City of New York, 711 F.3d 120, 126–29 (2d Cir. 2013), vacating summary judgment). The same court also held that discipline for conduct your disability causes is discipline because of the disability (id. at 129). But courts give real weight to the employer’s judgment, and an accommodation can never be the removal of an essential function: a pharmacist who could not give injections once the employer made immunizations part of the job lost (Stevens v. Rite Aid Corp., 851 F.3d 224, 229–31 (2d Cir. 2017), reversing a jury verdict for the employee).

If you cannot do the job even with an accommodation, the next step is reassignment to a vacant position you are qualified for (42 U.S.C. § 12111(9)(B); 9 NYCRR 466.11(a)(2)). An employer does not have to invent a new job built around your limits (466.11(f)(6)). If the disability is temporary, State law protects you where a reasonable time to recover would let you do the job afterward. Light duty, a changed schedule or time off to recover may be required, depending on the employer’s past practice, its leave policies, its needs and your attendance record (466.11(i)).

My employer says its policy does not allow it. Is that the end of it?

Usually not. A rule that applies to everyone is not an automatic answer to a request for an accommodation. Changing a policy is itself one of the accommodations the laws list: federal law names “appropriate adjustment or modifications of … policies” (42 U.S.C. § 12111(9)(B)), and the State regulation names “adjustment of examinations, training materials or policies” (9 NYCRR 466.11(a)(2)). The Supreme Court has explained why. “By definition any special ‘accommodation’ requires the employer to treat an employee with a disability differently,” and the fact that the different treatment breaks a rule that applies to everyone “cannot by itself place the accommodation beyond the Act’s potential reach.” Otherwise, the Court said, rules about office assignments, breaks or furniture budgets would defeat the very accommodations the law requires, and the law creates no “automatic exemption” for such rules (US Airways, Inc. v. Barnett, 535 U.S. 391, 397–98 (2002), vacating the court of appeals’ decision for the employee and remanding, 5–4). The case itself turned on a seniority system, discussed below.

The same principle runs through the rules on the policies that come up most often.

• Leave caps and attendance rules. The federal EEOC’s position is that “[t]he ADA requires that employers make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation,” so an employer with a maximum-leave or no-fault attendance policy may have to allow more time off unless it can show undue hardship. An employer that requires you to be “100%” healed before you come back violates the ADA if you can do the job with an accommodation that would not cause undue hardship (EEOC, Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016)). That document is agency guidance, not a binding rule.
• Dress, grooming and attendance standards under State law. An employer may apply these standards to everyone, but “reasonable and necessary deviations must be allowed as accommodations” (9 NYCRR 466.11(g)(1)(i)).
• Blanket rules in New York City. The City Commission says written policies such as a “maximum leave policy” should state that exceptions are available as accommodations and how to ask for one. An employer with a “no remote work” rule or a rule that remote work must be earned “cannot rely on such policies and must instead engage in a cooperative dialogue and do an individualized analysis” of your work, and no kind of accommodation is “categorically excluded” (NYC Commission on Human Rights, Disability Discrimination Legal Guidance).
• A new way of organizing the work. An employer that reorganized jobs around a new model could not simply decide that the employee did not fit it. The court held that a business model cannot be used “as a subterfuge” to avoid accommodating an employee (Hosking, 186 A.D.3d at 67).

When the policy does win. A policy can still justify a refusal in two situations. The first is undue hardship. The employer has to prove that making an exception would be an undue hardship, and under City law the burden is expressly the employer’s (Admin. Code § 8-102). The second is essential functions. An accommodation never requires the employer to remove an essential part of the job (Stevens, 851 F.3d at 230), and if you cannot do the essential parts of the job even with an accommodation, the law does not require the employer to keep you in it. Under City law that is a defense the employer must prove (§ 8-107(15)(b)). The State regulation also lets employers enforce conduct rules, such as rules against threatening behavior, that they apply to everyone (466.11(g)(1)(ii)). A seniority system is a special case under the ADA. A reassignment that would override one is “ordinarily” unreasonable, but you can still show special circumstances, for example that the employer changes the system often or that it already has exceptions, so “one further exception is unlikely to matter” (Barnett, 535 U.S. at 403–06).

What to do. Ask for the policy in writing and ask whether anyone has ever been given an exception. Point out that the law treats a change to the policy as an accommodation. Ask what hardship the exception would cause. In New York City, ask for the employer’s “written final determination” (Admin. Code § 8-107(28)(d)). A refusal that says only “that is our policy” is not an answer to those questions.

Can I take time off for my own condition?

Yes, and several laws may pay for it or hold your job while you are out. They stack, and the order matters.

• Sick leave first. New York employees earn at least one hour of sick leave for every 30 hours worked. Employers with 100 or more employees must allow up to 56 paid hours a year. Employers with 5 to 99 employees must allow 40 paid hours. Employers with 4 or fewer must allow 40 hours, paid if the employer’s net income was more than $1 million, otherwise unpaid (Labor Law § 196-b(1), (3)). When you come back, you must be restored to your position “with the same pay and other terms and conditions of employment” (§ 196-b(10)).
• FMLA for longer absences. If you are eligible, you may take up to 12 weeks a year for a serious health condition that makes you unable to do your job. The leave may be taken in pieces or on a reduced schedule when medically necessary. You get your job, or an equivalent one, back, and your health insurance continues while you are out (29 U.S.C. §§ 2612(a)(1)(D), (b)(1), 2614(a), (c)). FMLA leave is unpaid; paid leave you have earned can run at the same time.
• Disability benefits for pay. If you are out because of an illness or injury not caused by work, including pregnancy and recovery from childbirth, New York disability benefits pay half your average weekly wage, but no more than $170 a week, for up to 26 weeks (Workers’ Comp. Law §§ 204(2)(b), 205(1)(a)). The cap has not changed since 1989. Disability benefits replace some pay; they do not by themselves hold your job. Job protection comes from the FMLA or from an accommodation.
• Leave as an accommodation. When the FMLA does not apply or has run out, time off can itself be a reasonable accommodation under the ADA and the State and City laws. The State regulation lists “adjustments to work schedule for treatment or recovery” (9 NYCRR 466.11(a)(2)). How much leave is reasonable is where the laws differ most. A finite leave, such as a few weeks to see a specialist, can be reasonable (Graves, 457 F.3d at 185–86). Leave with no return date has fared badly under the State law: courts have held that “indefinite leave” is not a reasonable accommodation, and in one case set aside a $440,000 jury verdict for an employee who could not tell her employer when she would be back (Vangas v. Montefiore Med. Ctr., 823 F.3d 174, 180–82 (2d Cir. 2016), citing Romanello v Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881, 884 (2013)). City law is different. In Romanello the Court of Appeals reinstated the employee’s City claim, because the City law makes the employer prove that no accommodation was available (22 N.Y.3d at 884–85), and the City Commission’s guidance says an approximate return date or a range of dates can be enough (NYC Commission on Human Rights, Disability Discrimination Legal Guidance). Whether the State’s 2019 direction to read its law liberally, like the City’s, changes the State rule has not been decided. The practical answer is the same everywhere: ask your doctor for an expected return date, even an estimate, and put it in the request.
• Workers’ compensation if work caused it. For an injury or illness from your job, workers’ compensation, not disability benefits, pays wages and medical care.

Paid Family Leave is not for your own illness. It covers caring for a family member with a serious health condition, bonding with a new child, and certain military family needs (Workers’ Comp. Law § 201(15)). This is one of the most common misunderstandings. After childbirth, a mother can use disability benefits while she recovers and then Paid Family Leave to bond. The two cannot be collected at the same time (§ 205(4)), and together they may not exceed 26 weeks in a 52-week period (§ 205(1)(a)).

What extra protections apply if I am pregnant?

• Accommodation. Federal law requires employers with 15 or more employees to accommodate “known limitations” related to pregnancy, childbirth or related conditions, whether or not they would count as a disability (42 U.S.C. §§ 2000gg(4), 2000gg-1). New York State requires every employer to accommodate “pregnancy-related conditions,” defined to include lactation (Exec. Law §§ 292(21-f), 296(3)(a)). New York City requires accommodation of “pregnancy, childbirth, or related medical condition” and the same cooperative dialogue as for a disability (Admin. Code § 8-107(22)(a), (28)(a)(3)).
• Prenatal leave. Twenty hours of paid leave a year for pregnancy-related health care, including exams, testing and appointments, separate from sick leave (Labor Law § 196-b(4-a)).
• Pumping at work. Thirty minutes of paid break time each time you need to express breast milk, for up to three years after childbirth, plus the use of other break or meal time beyond that (Labor Law § 206-c(1)). The employer must provide a suitable private space on request (§ 206-c(2)). City law adds a lactation room and a refrigerator near your work area (Admin. Code § 8-107(22)(b)).
• Leave around the birth. Disability benefits for your recovery, then Paid Family Leave to bond with the baby, with the FMLA protecting your job if you are eligible. See the previous question.

What if I am caring for a family member or a new child?

• Paid Family Leave gives up to 12 weeks a year at 67 percent of your average weekly wage, up to a cap tied to the statewide average wage, to care for a family member with a serious health condition or to bond with a new child (Workers’ Comp. Law §§ 201(15), 204(2)(a)). You must be restored to your job or a comparable one when you return (§ 203-b).
• The FMLA also covers caring for a spouse, child or parent with a serious health condition, and the birth or placement of a child (29 U.S.C. § 2612(a)(1)). Paid Family Leave and FMLA leave run at the same time (Workers’ Comp. Law § 205(2)).
• Sick leave can be used for a family member’s illness or care (Labor Law § 196-b(4)).
• Discrimination. State law prohibits discrimination because of “familial status,” which includes being pregnant or having a child under 18 (Exec. Law § 292(26)). City law protects “caregiver status”: anyone who provides direct and ongoing care for a minor child, or for a relative or household member with a disability who relies on them (Admin. Code § 8-102). The ADA prohibits treating you worse because of the known disability of someone you have a relationship with (42 U.S.C. § 12112(b)(4)).

Can I be fired because of my condition, my leave or my request?

No. Each of these laws forbids it, and most forbid retaliation separately.

• Firing or disciplining you because of a disability, a pregnancy-related condition, familial status or caregiver status is discrimination under the ADA, the PWFA and the State and City Human Rights Laws.
• Retaliating because you asked for an accommodation or complained is separately unlawful (42 U.S.C. § 12203(a)–(b); Exec. Law § 296(7); Admin. Code § 8-107(7)).
• The FMLA forbids interfering with your leave and punishing you for taking it (29 U.S.C. § 2615(a)).
• The sick-leave law forbids retaliation for requesting or using sick or prenatal leave (Labor Law § 196-b(7), enforced through § 215).
• The Workers’ Compensation Law makes it unlawful to fire or discriminate against you because you claimed any benefit under that law, which includes disability benefits and Paid Family Leave as well as workers’ compensation (Workers’ Comp. Law § 120).

An employer may still enforce the attendance, performance and conduct standards it applies consistently to everyone, though reasonable deviations must be allowed as accommodations (9 NYCRR 466.11(g)(1)). And under State law the duty to accommodate depends on the disability and the need being known or made known to the employer (466.11(d)(2)); City law also reaches what the employer should have known. Most disputes turn on what the employer knew and when, and whether the reason it gives is the real one.

Applying for Social Security disability, or long-term disability insurance. Those applications usually say you cannot work. That statement can be used against a claim that you could have worked with an accommodation. Applying for or receiving Social Security disability does not automatically bar a disability discrimination claim, because Social Security does not consider whether you could work with an accommodation. But you will have to explain the apparent contradiction well enough for a jury to find that you could still do the essential parts of your job with an accommodation (Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 802–07 (1999), vacating judgment for the employer). If you are considering an application and also think your employer treated you unlawfully, talk to a lawyer before you file it.

What are the deadlines?

They differ by law, and some are short. These are general periods, not a date for your case; when a period starts depends on the facts.

• ADA and PWFA: a charge with the EEOC, generally within 300 days in New York, before you can sue.
• New York State Human Rights Law: three years, in court or with the Division of Human Rights (Exec. Law § 297(5), for conduct on or after February 15, 2024).
• New York City Human Rights Law: three years in court (Admin. Code § 8-502(d)); one year with the City Commission (§ 8-109(e)).
• FMLA: two years in court, three if the violation was willful (29 U.S.C. § 2617(c)).
• Workers’ Compensation Law retaliation: two years, with the Workers’ Compensation Board (Workers’ Comp. Law § 120).

Choosing a forum can close off others. Filing a complaint with the State Division of Human Rights or the City Commission can bar a later lawsuit on the same claim under the State and City laws (Exec. Law § 297(9); Admin. Code § 8-502(a)). Decide where to file before you file.

What should I do now?

• Put accommodation and leave requests in writing, and keep copies of everything you send and receive.
• Ask your doctor for a note that describes your limitations and what would help. It does not need to include your diagnosis unless that is needed to understand the request.
• If you work in New York City and ask for an accommodation, expect a written final decision. If you do not get one, ask for it in writing.
• Keep your own record of dates: when you told your employer, when you asked, what they said, and any change in how you were treated afterward.
• Keep your performance reviews and any praise or criticism of your work from before and after you disclosed your condition.
• If you are offered a severance agreement on the way out, read what you would be giving up before you sign.