Effective January 30, 2014, the newly enacted Pregnant Workers Fairness Act, which amends the New York City Human Rights Law ("NYCHRL"), will require New York City employers to provide reasonable accommodations to pregnant employees and employees that suffer medical conditions related to pregnancy or childbirth. The NYCHRL applies to employers employing four or more employees or independent contractors, who are not themselves employers, in New York City.
The new law requires an employer who knows or should have known of an employee's pregnancy, childbirth, or related medical condition to provide a reasonable accommodation to that employee which would allow the employee to perform the essential responsibilities of her job. "Reasonable accommodation" means "such accommodation that can be made that shall not cause undue hardship in the conduct of the covered entity's business" and may include "bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor, among other things."
The law permits an employer to assert an affirmative defense to an employee's discrimination claim if the employee "could not, with reasonable accommodation satisfy the essential requisites of the job." An employer may also deny a requested accommodation if the employer can establish that providing the accommodation would cause “undue hardship", which will be determined on a case-by-case basis considering various factors (that are the same as the factors used for determining undue hardship under the disability provisions of the NYCHRL):
- The nature and cost of the accommodation;
- The overall financial resources of the employer;
- The number of employees over all and at the facility;
- The type(s) and structure of the operations of the employer;
- The number, type, and location of the employer's facilities;
- The overall financial resources of the facility;
- The impact and effect on facility expenses and resources, or other impact of the accommodation on the operation of the facility.
The amended NYCHRL also requires employers to post and distribute a written notice in the workplace stating that employees have the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions. Employers must provide this notice to new employees at the commencement of their employment and to existing employees as of January 30, 2014.