Mayor Michael Bloomberg recently signed a new law amending the New York City Human Rights Law (NYCHRL) to provide additional protections for women who are pregnant or giving birth. Specifically, the Pregnant Workers Fairness Act requires employers with at least four employees or independent contractors working for them to provide reasonable accommodations for pregnancy, childbirth, or related conditions even if the employee is not disabled. A reasonable accommodation is either a modification to the way a job is performed, or a change to a job duty, that permits the employee to perform the essential functions of her job. The new law goes into effect on January 30, 2014.
Under the NYCHRL, an employer can deny a reasonable accommodation if the employee still would not be able to perform the essential functions of her job, or if providing it would impose an undue hardship on its business. The employer has the burden to prove either of these defenses. In determining whether an accommodation would impose an undue hardship, a company can consider (1) the nature of the accommodation and its cost; (2) the financial and personnel resources of the location at which the accommodation would be provided; (3) the financial and other resources of the entire company; or (4) the composition of the company in terms of the workforce, geographic locations and other similar factors.
Under the Act, an employer must provide reasonable accommodations for pregnancy or child birth if it knows or should know the employee is pregnant. This suggests it is not necessary for an employee to request an accommodation for the employer to be obligated to provide one. Of course, the easiest way to ensure your employer knows you need an accommodation is to request it so there is no doubt your employer knows you need it. The same provision raises the question of what would happen if an employer tries to provide an unnecessary or unwanted accommodation. Presumably this should be addressed in a discussion between the employer and the employee (the “interactive process”), but there still could be issues if the employer believes it is legally obligated to provide an accommodation that the employee does not want.
The Act lists several examples of possible accommodations for pregnancy, including additional bathroom breaks and other breaks and rest time during the workday, leaves of absence, and assistance with manual labor. These are only examples, and other accommodations can be required when they are reasonable.
New York City employers also are required to provide written notice to employees about their right not to experience discrimination based on pregnancy, childbirth, or related medical conditions. Companies have to provide this notice to current employees within 120 after the law goes into effect, meaning by May 30, 2014. They also have to provide this information to any new employees when they are hired, and to conspicuously post it in the workplace in a location where it can be seen by all employees.
The Pregnant Workers Fairness Act is similar to the Religious Freedom Act, another amendment to the NYCHLR that was passed late last year regarding reasonable accommodations for religious beliefs. For more information about the Religious Freedom Act, please see our article: New York City Clarifies Right to Reasonable Accommodations for Religious Beliefs.