New York Mayor Michael Bloomberg recently signed the Pregnant Workers Fairness Act (the “NYC Law”) into law which modified the New York City’s Human Rights Law (“NYCHRL”). The NYC Law requires employers with four or more employees to reasonably accommodate pregnant workers and prohibits employers from discriminating against employees on the basis of pregnancy, childbirth, or a related medical condition. The law will be effective on January 30, 2014.
The new law exemplifies a growing trend across the country to explicitly require reasonable accommodation for pregnant employees. Eight states, including Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, Maryland and Texas already have such laws.
However, under the federal Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”), as well as the New York State Human Rights Law (“NYSHRL”), reasonable accommodation is not required for pregnant employees absent an accompanying disability.
The PDA and NYSHRL require an employer to treat pregnant employees the same as non-pregnant employees. This means an employer only needs to accommodate pregnant employees in the same way they would accommodate any other temporarily disabled employee. Further, under the ADA, pregnancy is not itself a disability; only complications that arise from a pregnancy which cause physical impairment would require an accommodation.
Protections under the Act
The NYC Law provides broader protection to pregnant employees than the PDA, ADA, and the NYHRL. If the employer knows or should have known about the employee’s pregnancy, childbirth, or related medical condition, then the employer cannot refuse to provide reasonable accommodation unless it would cause undue hardship in the conduct of the employer’s business.
The NYC Law provides specific examples of reasonable accommodations for pregnant employees, such as:
· bathroom breaks;
· leave for a period of disability arising from childbirth;
· breaks to facilitate water intake;
· periodic rest for those who stand for long periods of time; and
· assistance with manual labor.
As a practical matter, an employer has the burden to prove that the accommodation would cause undue hardship. In addition, when a claim is brought under the NYC Law, an employer may raise, as an affirmative defense, that the employee, even with a reasonable accommodation, could not satisfy the essential job functions.
Notice Requirement
The NYC Law also requires written notice be provided to employees informing them of their rights under the Act. The notice must be provided to new employees upon hire and to existing employees (both males and females) by May 30, 2014. The NYC Law recommends, but does not require, the notice to be conspicuously posted at an employer’s place of business in areas accessible to employees. Accordingly, the New York City Commission on Human Rights has since published a form notice employers can provide to their employees.
Conclusion
Employers need to be aware that aggrieved employees under the NYCHRL have the most generous remedies available to them as compared to most other civil rights laws.