NYC Employers Have New Obligations Toward Pregnant and Recently Pregnant Employees

Written by Robert G. Brody and Rebecca Goldberg on October 9, 2013

After a unanimous vote by the New York City Council and approval by Mayor Bloomberg, most employers in New York City must reasonably accommodate an employee’s pregnancy, childbirth, or related medical condition.   The new law goes into effect January 30, 2014, and applies to employers with four or more employees.  (As with other provisions of New York City’s nondiscrimination law, independent contractors count toward the number of employees if they are natural persons and are not employers themselves.)

Employers must accommodate an employee’s pregnancy, childbirth, or related medical condition in order to allow the employee to perform the “essential requisites of the job.”  This requirement is similar to the requirement to reasonably accommodate disabled employees under the Americans with Disabilities Act.  Examples of reasonable accommodations may include allowing the employee to work a later shift if she suffers from morning sickness or allowing the employee to take frequent bathroom breaks.  (Remember, employers must already provide breastfeeding breaks under federal law.)

There are three situations in which the employer does not need to provide a reasonable accommodation:

1.  the employer did not know and  should not have known of the pregnancy, childbirth, or related medical condition;

2.  the accommodation would cause an undue hardship (such as significant financial cost or interference with business operations); or

3. if the employee would not be able to perform the “essential requisites of the job” even with the accommodation.

While it is unclear who has the burden to prove the employer had knowledge, the burden for the latter two exceptions appears clearly to fall on the employer.  As with all issues of determining reasonable accommodations, the decision should be well considered and well documented.  The use of counsel in these cases is often prudent, especially while the law is new.   Employers who unlawfully deny reasonable accommodations face administrative actions and lawsuits.

Finally, the new law requires employers to provide written notice of the right to be free from discrimination on the basis of pregnancy, childbirth, or related medical conditions.  The notice must be given to all new hires.  Existing employees must also receive this notice by May 30, 2014.  The New York City Commission on Human Rights will create a form for the notice.  Since the law does not specify otherwise, presumably the notice must be given to all employees.

New York City’s law is not the first to require reasonable accommodations for pregnant employees.  Several states, including Connecticut, California, and Maryland, have similar requirements.

It is interesting to note that current federal law requires reasonable accommodations for disabilities, including those related to pregnancy and childbirth.  However, there is no such obligation for pregnancy-related conditions that are not disabilities.  Generally, federal law requires only that pregnancy be accommodated to the same extent as temporary disabilities that do not receive protection under the Americans with Disabilities Act.  For example, if an employer does not allow a store clerk to remain seated because she pulled a muscle in her back, federal law would not require she be permitted to sit because she is pregnant.  The New York City law would change that and require the accommodation for the pregnant employee, absent undue hardship.  Despite the difference in the federal and local standards, the Equal Employment Opportunity Commission says pregnancy discrimination is a priority, so employers nationwide should ensure their policies and practices are not discriminatory.

Brody and Associates regularly advises management on complying with local, state, and federal employment laws including discrimination laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

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About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More