New amendments to the New York City Human Rights Law (“NYCHRL”) will require most NYC employers to reasonably accommodate pregnant workers starting on Jan. 30, 2014. Under the new law, NYC employers with four or more employees (including most independent contractors) must provide reasonable accommodations on the basis of pregnancy, childbirth, or a related medical condition.
How is the new law different from federal law?
The federal Pregnancy Discrimination Act (“PDA”) requires pregnant employees to be treated in the same manner as similar employees in their ability or inability to do work. The Americans with Disabilities Act (“ADA”) does not consider pregnancy by itself to be a disability, so reasonable accommodations are not normally required for pregnant employees (however, medical complications arising from a pregnancy or childbirth that cause a physical impairment may trigger an employer’s responsibility to accommodate). The new amendments to the NYCHRL provide broader protections to pregnant employees than existing federal law in terms of the types of accommodations that must be considered and implemented.
What does the NYC law require?
Under the newly amended NYCHRL, if an employee’s pregnancy, childbirth, or related medical condition is known or should have been known by the employer, the employer must reasonably accommodate the employee. Such accommodation must allow the employee to perform the “essential requisites” of her job. Reasonable pregnancy-related accommodations may include: restroom breaks, leave for a childbirth-related disability, water breaks, rest breaks for employees who stand for long periods of time, and manual labor assistance.
Employers are not required to make accommodations that would cause undue hardship in the conduct of their business. Factors that may be taken into account when determining whether an accommodation poses an undue hardship include: the nature and cost of the accommodation, the employer’s type and size of business, the number of employees, the overall financial resources of the employer’s business, and the effect of the accommodation on these resources and business.
What should employers do?
- Provide notice. Employers must provide pregnant workers with a written notice of their rights under the NYCHRL. Such notice must be provided to all new employees when they begin employment as well as to existing employees within 120 days after the effective date of the law (Jan. 30, 2014). Employers are advised to also conspicuously post this notice in the workplace. The NYC Commission on Human Rights (“Commission”), the entity that enforces the NYCHRL, has recently released a Pregnancy and Employment Rights Poster that provides a summary of the law and lists examples of reasonable accommodations.
- Document the accommodation process. Employees alleging a violation of the NYCHRL can bring a claim to the Commission or in civil court. Employers have the burden of proving undue hardship. Employers may also raise an affirmative defense that reasonable accommodations would not enable the aggrieved employee to perform the essential requisites of her job. As a result, it is important that employers document the interactive process with employees while they determine whether a reasonable accommodation can be made without undue hardship to the employer. Employers should also be able to identify which are the essential functions of a job.
- Review existing policies, procedures, and training. NYC employers should consider reviewing and updating, if necessary, their internal procedures and trainings to ensure compliance with this new pregnancy-specific accommodation requirement.