With its new law treating pregnancy as a disability, Philadelphia joined Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, Maryland, New Jersey and Texas, as well as New York City, which all passed similar legislation in recent months. Beyond prohibiting discrimination based on pregnancy, childbirth, or a related medical condition, the new Philadelphia ordinance adds to the Philadelphia Fair Practices Ordinance to require Philadelphia employers to accommodate female employees "affected by pregnancy" and to post a workplace notice of the amendment.
The amendment goes well beyond federal and state statutes prohibiting pregnancy discrimination. The amended Fair Practices Ordinance requires Philadelphia employers to offer reasonable accommodations to a female employee "affected by pregnancy," regardless of whether she is otherwise "disabled." Examples include: restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, and reassignment to a vacant position and job restructuring.
Employers may refuse a requested accommodation only if it would create an "undue hardship on the operation of the employer’s business." To determine whether an accommodation creates an undue hardship requires consideration of four factors:
- The nature and cost of the accommodations
- The overall financial resources of the employer’s facility or facilities involved in providing the reasonable accommodations, including the number of persons employed at such facility or facilities, the effect on expenses and resources, or the impact otherwise of such accommodations upon the operation of the employer
- The overall financial resources of the employer, including the size of the employer with respect to the number of its employees, and the number, type, and location of its facilities
- The type of operation or operations of the employer, including the composition, structure, and functions of the workforce, and the geographic separateness or administrative or fiscal relationship of the facility or facilities in question to the employer
While employers are not required to continue to employ employees who cannot perform the essential duties of their jobs even with a reasonable accommodation, whether an accommodation is "unreasonable" will continue to haunt employers.
By April 20, 2014, Philadelphia employers must conspicuously post written notice of the amendment in an area accessible to employees. We expect the Philadelphia Commission on Human Relations to issue a required notice by the posting deadline.