NYC Poised to Enact Pregnancy Accommodations Law

Author: Beth P. Zoller, XpertHR Legal Editor

September 25, 2013

A unanimous New York City Council recently passed a bill known as the New York City Pregnant Workers Fairness Act, which, if enacted, would require employers to provide pregnant workers with reasonable accommodations unless doing so would cause the employer undue hardship. The bill was approved 47 to 0, with one abstention, and it is expected that it will be signed by Mayor Michael Bloomberg who has openly expressed public support for the bill.

Specifically, the New York City Pregnant Workers Fairness Act would expand New York City's Human Rights Law by preventing employers from engaging in pregnancy discrimination. It requires employers to provide reasonable accommodations to pregnant women and those who suffer medical conditions related to pregnancy and childbirth that will permit them to perform their essential job functions, provided the employer knows about the employee's pregnancy or medical condition. Reasonable accommodations might include "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." The law provides greater pregnancy rights to employees than under federal or state law and would apply to all employers with four or more employees as well as independent contractors.

An employer that refuses to provide a requested accommodation has the burden of proving undue hardship. In determining whether an undue hardship exists, the following factors may be considered:

• The nature and cost of the accommodation.
• The overall financial resources required by the employer's facility to provide the reasonable accommodation including the number of persons employed at such facility, the effect on expenses and resources, or the impact upon the facility's operations.
• The employer's overall financial resources, including the overall size of the business, the number of employees as well as the number, type and location of facilities.
• The employer's operations, including the composition, structure, and functions of its workforce, the geographic layout and the administrative or fiscal relationship of the particular facility in connection to the employer.

If an employer denies a requested accommodation, an employer may claim that even with a reasonable accommodation, the pregnant worker could not perform the essential requirements of the job.

Under the new law, employers would be required to provide written notice of the right to be free from pregnancy discrimination and the employer's obligation to provide pregnant workers with reasonable accommodations to all new employees at the beginning of employment and existing employees within 120 days after the law's enactment.

Further, if the law is signed employers would be required to post notice of the rights of pregnant workers in a visible place accessible to employees. Additionally, the New York City Commission on Human Rights would be required to develop a course of instruction and conduct public education and outreach efforts to educate employers, employees, employment agencies, and job applicants about the rights of pregnant workers and an employer's responsibilities. The bill also allows individuals to file a complaint with the New York City Commission on Human Rights or to file a civil action for discrimination and denial of reasonable accommodations.

Employers should be aware that similar legislation has been introduced in the New York legislature as well as the US Congress and some states, such as Maryland have already passed similar laws.