Philadelphia and New York City recently passed ordinances that increase workplace protections for pregnant employees. These new laws affirmatively compel employers to provide reasonable accommodations for employees with needs related to pregnancy, childbirth, and associated medical conditions.
The two laws are very similar to each other but are not identical. Here is a summary of the critical information that employers in Philadelphia and New York City should know:
New York City
In October 2013, the New York City Council approved an amendment to the City’s Human Rights Law. The amendment requires employers to provide reasonable accommodations to pregnant women and to “those who suffer medical conditions related to pregnancy and childbirth.” The law, which went into effect on January 30, 2014, was designed to combat workplace discrimination against women who request accommodations that “will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth.”
- Who is Covered?: The law applies to all employers in New York City (which includes all five boroughs) with four or more employees. For purposes of the law, “employees” include full- and part-time workers as well as contract workers who are not themselves employers.
- What is a Reasonable Accommodation?: The ordinance includes a non-exhaustive list of workplace accommodations that might be required, including "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."
- When Accommodations Are Not Required: Accommodations that would cause an “undue hardship in the conduct of an employer’s business” do not have to be provided. If a requested accommodation is refused and an employee challenges the refusal, then the burden of proving undue hardship is on the employer. In determining whether undue hardship exists, several factors may be considered, including but not limited to: (1) the nature and cost of the accommodation, (2) the overall resources of the worksite facility where the requested accommodation would be applied, (3) the employer’s overall financial resources and size, and (4) the type of operation(s) of the employer, including the structure of the workforce.
- What if the Employee Simply Can’t Do Her Job? It is an affirmative defense to a claim of pregnancy discrimination that the employee aggrieved by the alleged discriminatory action could not, with reasonable accommodation, satisfy the essential requirements of her job.
- Written Notice Requirement: Employers must provide written notice to all new and existing employees of their right to be free from discrimination related to pregnancy, childbirth, and related medical conditions by May 30, 2014. Employers must also post the notice conspicuously in an area accessible to all employees. An official poster is available for download on the NYC Commission on Human Rights’ website here.
On January 20, 2014, Philadelphia’s mayor signed an amendment to the City’s Fair Practices Ordinance. The new law makes it unlawful for any employer to fail to provide reasonable accommodations to an employee for needs related to pregnancy, childbirth, or a related medical condition.
- Who is Covered?: The law applies to all Philadelphia employers, regardless of size.
- What is a Reasonable Accommodation?: The Philadelphia ordinance defines a reasonable workplace accommodation as one that allows an employee to perform the essential functions of her job. Such accommodations include, but are not limited to, "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, reassignment to a vacant position, and job restructuring."
- When Accommodations Are Not Required: Any accommodation that would create an “undue hardship” for the employer does not need to be provided. If an employer refuses an accommodation based on undue hardship and the employee challenges the refusal, then the employer bears the burden of proving that an undue hardship existed. Factors that are considered in determining whether undue hardship exists include but are not limited to: (1) the nature and cost of the accommodation, (2) the overall resources of the worksite facility where the requested accommodation would be applied, (3) the employer’s overall financial resources and size, and (4) the type of operation(s) of the employer, including the structure and functions of the workforce.
- What if the Employee Simply Can’t Do Her Job? It is an affirmative defense to a claim of pregnancy discrimination that the employee aggrieved by the alleged discriminatory practice could not, with reasonable accommodations, satisfy the requisites of her job.
- Written Notice Requirement: All current employees and any new employees must be provided with written notice of their rights under the new law by April 20, 2014. Notice must also be posted conspicuously at the employer’s place of business in a location accessible to all employees.
Employers in New York City and Philadelphia should make sure they are familiar with the requirements of these new ordinances and update all relevant handbooks, policies, and procedures to ensure compliance with the law. Additionally, any employees who evaluate pregnancy-related accommodation requests should be trained on the new law, the employer’s new policies, and proper interactive process to engage in when they receive accommodation requests.
Taking action now to update policies and provide proper training can help reduce the chance of employees filing discrimination claims and provide employers with the necessary tools to defend against any claims that might arise.