The New York City Council voted unanimously this Fall to amend and expand the New York City Human Rights Law (“NYCHRL”) to require most New York City employers to provide reasonable accommodations to pregnant workers and to workers with pregnancy and childbirth-related medical conditions.  

The new law, which goes into effect January 30, 2014, also prohibits employers from discriminating against employees in the workplace on the basis of pregnancy, childbirth, or a related medical condition.

Although the NYCHRL already prohibits discrimination on the basis of gender or disability, and pregnancy has long been considered a “disability” in many circumstances under the law, the amendment is a significant development because employees are no longer required to make any showing that the pregnancy should qualify as a disability under federal, state or city law.  Rather, all pregnant employees enjoy the protections of the law, where applicable.

What Employers Are Covered by the Expanded Protections?

The NYCHRL applies to all employers in New York City, including employment agencies, who employ four or more people.  Independent contractors will generally be included as “employees” for purposes of this law, although there are some exceptions.  

What Conduct is Prohibited by the Expanded NYCHRL?

The newly enacted protections require covered employers to provide a reasonable accommodation to an employee who asks for the accommodation due to her pregnancy, childbirth, or a related medical condition.  

The pregnancy, childbirth, or related medical condition must be known to the employer or “should have been known” by the employer.  This phrase means that an employer cannot avoid providing a reasonable accommodation simply because the employee did not expressly tell the employer that the accommodation is related to a protected pregnancy-related condition if the employer should have known of the condition.  For example, if an employee had told her employer that she was pregnant, and in the following weeks asked the employer if she could be permitted to shift her work schedule to a later arrival and departure because she was feeling sick in the mornings, a court would likely find that the employer “should have known” this was related to morning-sickness, one of the pregnancy-related conditions commonly requiring accommodation from employers.

What is a “Reasonable Accommodation” under the Law?

Under the NYCHRL, “reasonable accommodation” is defined as “an accommodation that shall not cause undue hardship in the conduct of the [business].” The employee must still be able to perform the “essential requisites” of the job, with only some accommodation.

Specific examples of accommodations that would be considered reasonable under the law include, but are not limited to:

•Additional bathroom breaks;
•Leave for a period of disability related to childbirth;
•Breaks to allow for increased water intake;
•Periodic rest for employees who must stand for long periods; and
•Assistance with manual labor.

Other reasonable accommodations may be assigning some workers to “light duty” or providing for a procedure for a pregnant employee to obtain assistance with physically challenging work, allowing for time off for medical appointments, or altering work hours to accommodate “morning sickness” where such alteration would not cause undue hardship.

A major concern recent mothers may have is that the new law does not directly address their ability to pump breast milk while on the job, but rest assured that this is protected activity.  New York State Labor Law Section 206-c already requires that employers “provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day . . . to express breast milk for her nursing child for up to three years following child birth.” Employers must make “reasonable efforts” to provide a space in the office, or nearby, in which employees can pump breast milk. The statute also prohibits employers from discriminating against employees who express breast milk at the workplace and applies to all employers, public and private, no matter how large or small. 

How do Employers Determine if an Accommodation Would Cause “Undue Hardship”?

Employers must carefully evaluate each request for an accommodation, taking into account the nature of the employee’s position and work, the potential length of the accommodation, and the realistic affect the accommodation will have on the workplace.  

It is not appropriate for employers to consider the individual employee’s work history, whether the employer “values” the employee over other employees, or other such unrelated factors.  

The following are appropriate factors to consider in the face of any request for accommodation:

•The overall financial resources of the employer;
•The effect of the accommodation on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; 
•The nature and cost of the accommodation;
•The number of persons employed at the facility;
•The overall financial resources of the facility or facilities involved in the request;
•The overall size of the business of the employer with respect to the number of employees and the number, type and location of its facilities;
•The type of operation of the covered entity, including composition, structure, and functions of the workforce; and
•The geographic separateness, administrative or fiscal relationship of the facility in question.

In addition, if an employee could not satisfy the “essential requisites” of the job, even with a reasonable accommodation, the employer may be excused from providing the accommodation even if it would be considered “reasonable” under other circumstances. 

While the law provides for the above exceptions, it is strongly recommended that employers who are uncertain whether it is able to deny a request for reasonable accommodations seek out legal advice to ensure that the response is within the law’s requirements.

Are Employers Required to Notify Employees About the New Changes?

In short, yes.

The New York City Commission on Human Rights (the “Commission”) is expected to determine the form and manner of the notice, but employers will be required to provide employees with written notice regarding their right to be free from discrimination related to pregnancy, childbirth or related medical conditions.  This notice must be provided to all new employees upon commencement of employment, as well as to existing employees within 120 days after the effective date of the new law.

The new law also strongly suggests that employers should post the notice conspicuously in the workplace.

The Commission is expected to develop courses of instruction and other public education efforts to help educate employers, employees, and job applicants about their rights and responsibilities under the new law.

Aren’t There Other Laws that Prohibit Pregnancy Discrimination?  What Makes This Law Different?

Existing Federal laws, such as the Pregnancy Discrimination Act (“PDA”) and Americans with Disabilities Act (“ADA”), as well as the New York State Human Rights Law, do not require reasonable accommodations based on pregnancy absent an accompanying disability.   

The PDA prohibits employers from discriminating on the basis of pregnancy itself.  Further, the ADA only applies where complications arising from or related to a pregnancy causes a physical impairment that rises to the level set forth in the law, which is significantly more onerous for an employee to demonstrate.  Only then will the ADA require the employer to provide reasonable accommodations.

By expressly requiring employers to provide reasonable accommodations to pregnant women and those with medical conditions related to pregnancy and childbirth, the new NYCHRL does not make pregnancy a disability or require employees to demonstrate that they suffer from a disability, but rather allows reasonable accommodations in the same manner as those required as a result of a disability.

What do I do if my Employer Violates the Law?

An employee who suffers discrimination in violation of the law or is denied reasonable accommodations covered by the law has two options: she can either file a complaint with the Commission, who will investigate and determine what it believes are the appropriate actions to take, ranging from forced re-hiring to back wages; or the employee can file a civil action in court seeking damages related to the employment action.

Under either circumstance, having the advice and assistance of legal counsel can both alleviate the burden on employees and also increase the chances of recovering against an employer who has acted unlawfully.  

As an Employer, What Should I do to Prepare for Implementation of the Law?

Employers who are covered by the law should immediately take steps to review standard policies and practices to ensure that they are or will be in compliance with the amended NYCHRL.  It would be wise for employers to:

•Begin creating a procedure for notifying existing employees of the change in the law;
•Monitor the Commission’s website regularly to see if it has released a model written notice to be distributed to employees, and if it has not been released before January 30, 2014, prepare its own notice to be distributed to employees;
•Review and update polices and procedures for 1) employees requesting reasonable accommodations; and 2) how such requests are reviewed internally.
•Train managers on how they should handle accommodation requests and other employment issues related to pregnancy, ensuring that managers are aware that some requests for “reasonable accommodation” require a decision on the spot and know how to handle them.

In addition to reviewing your company’s general policies and practices, employers should review the status and requests of all employees that they know are pregnant or who were recently pregnant, and ensure that reasonable accommodations are provided to such employees, to the extent they are not already being provided.

For more information, employees and employers can contact us here.