120 days after the attached New York City Council bill becomes law (the bill is veto-proof), New York City employers with four or more employees (including independent contractors who themselves are not employers) must provide reasonable accommodations to non-essential job functions of “pregnant women and those who suffer medical conditions related to pregnancy and childbirth.”
The bill reads: “Employment; Pregnancy, childbirth, or a related medical condition. (a) It shall be an unlawful discriminatory practice for an employer to refuse to provide a reasonable accommodation, as defined in subdivision eighteen of section 8-102 of this chapter, to the needs of an employee for her pregnancy, childbirth, or related medical condition that will allow the employee to perform the essential requisites of the job, provided that such employee’s pregnancy, childbirth, or related medical condition is known or should have been known by the employer. In any case pursuant to this subdivision where the need for reasonable accommodation is placed in issue, it shall be an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodation, satisfy the essential requisites of the job.”
According to the bill, such a reasonable accommodation 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 only time a reasonable accommodation is not required is when an employer establishes an undue hardship after analyzing: (1) the nature and cost of the accommodation; (2) the overall financial resources of the facility involved, the number of persons employed at the facility, the effect on expenses and resources, or the impact otherwise of an accommodation upon the operation of the facility; (3) the overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of its employees, the number, type, and location of its facilities; and (4) the type of operation of the covered entity, including the composition, structure, and functions of the workforce; and the geographic separateness, administrative, or fiscal relationship of the facility in question to the covered entity.
The bill also will require employers to provide written notice of rights (to be determined) to newly-hired employees and to existing employees within 120 days after the effective date of the law. The notice “may also” be conspicuously posted at an employer’s place of business in an area accessible to employees.
It is important to note that it is illegal under New York State Human Rights Law to discriminate against an employee because of gender or disability, and the Human Rights Commission has held that diagnosed pregnancy-related morning sickness (among other things) qualifies as a disability requiring an accommodation. The new City law goes well beyond diagnosed disabilities associated with pregnancy and childbirth.
Also, under New York State Human Rights Law (New York State Executive Law, Article 15, section 296(1) (g)), it is illegal to compel a pregnant employee to take a leave of absence, unless the employee is prevented by such pregnancy from performing the activities involved in the job or occupation in a reasonable manner.” Thus, when making a reasonable accommodation decision, an employer may not choose leave over the objections of the employee.