New York City Passes Pregnant Workers Fairness Act

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The New York City Council recently passed legislation designed to ensure workplace rights for pregnant women by prohibiting discrimination in employment based on pregnancy, childbirth, or a related condition.

The Pregnant Workers Fairness Act amends the New York City Human Rights Law (Title 8 of the Administrative Code) such that employers with four or more employees must provide a reasonable accommodation for pregnancy, childbirth and related medical conditions, and cannot penalize a pregnant woman who needs a minor job modification to continue working during pregnancy or requires time off to recover from childbirth. Under the new law, “reasonable accommodation” means an accommodation that can be made without “undue hardship” to the business in question.  The employer must prove the undue hardship, which involve factors specific to the employer’s business.  In order to avail herself of these new benefits, an employee must request an accommodation and provide a statement from her health care provider containing sufficient information to support such request.

In enacting the measure, the City Council found widespread discrimination against pregnant women, and announced that the goal of the legislation is to combat such discrimination “by requiring employers to provide a reasonable accommodation to pregnant women and those who suffer conditions related to pregnancy and childbirth.”  The legislation includes examples of reasonable accommodations, including “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, among other things.”

The purpose of the Pregnant Workers Fairness Act is to supplement protections already found in Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act (“PDA”).  While the PDA requires employers to treat pregnant or postpartum women in the same way as it treats any other temporarily disabled employee, it does not specifically and proactively require any kind of accommodations. Thus, under the PDA, if the employer provides light duty, alternative assignments, disability leave, or unpaid leave to disabled employees, it would also have to provide those same accommodations for pregnant employees, but if it does not provide such accommodations to disabled employees, it need not provide any accommodations to those disabled by pregnancy or childbirth.

The Pregnancy Workers Fairness Act requires active accommodation of employees, even if no such accommodation is provided to similarly disabled non-pregnant employees.  So, for example, even if an employer refuses to allow disabled employees to sit while performing cashier duties, or refuses to allow employees to carry water while they are on duty, the employer may be required to allow pregnant employees such accommodations, unless it would be an undue hardship on the employer.

The Commission is tasked with creating a written notice informing employees of their rights under the law, which employers will be required to post.

Similar legislation has been introduced at the New York State and federal levels, but their passage is far from certain.