What Employers Need to Know About the New York City Pregnancy Accommodation Enforcement Guidance

Jackson Lewis P.C.

The New York City Commission on Human Rights has released enforcement guidance on the New York City Pregnant Workers Fairness Act identifying five categories of potential violations and emphasizing the need to engage in cooperative dialogue to reach accommodation. The Act, passed in 2013 and codified in the New York City Human Rights Law, protects against discrimination and mandates reasonable accommodations based on pregnancy, childbirth, or related medical condition. For a review of the Act’s statutory requirements as they relate to pregnancy accommodations, see our article, Employers Must Provide Pregnancy-Related Accommodations under New York City Law.

Key sections of the “Legal Enforcement Guidance on Discrimination on the Basis of Pregnancy” are reviewed below.


  • “Pregnancy” is defined broadly to include not only “being pregnant,” but also “symptoms of pregnancy, including, without limitation, nausea, morning sickness, dehydration, increased appetite, swelling of extremities, and increased body temperature.”
  • “Related Medical Condition” is also defined broadly to include “the state of seeking to become pregnant”; medical conditions related to or caused by pregnancy or childbirth, such as infertility, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, miscarriage, or lactation; or recovery from childbirth, miscarriage, and termination of pregnancy.
  • “Cooperative Dialogue” is defined as “the process by which an employer engages with an employee in an open problem-solving conversation based on the employee’s request for an accommodation or the belief that an employee might benefit from an accommodation…[that] involves consideration of a proposed accommodation or alternative accommodation for an employee’s pregnancy, childbirth, or related medical condition while allowing them to perform the essential requisites of the job without creating an undue hardship on the employer.” (This is similar to the interactive process associated with disability accommodations.)

Compliance Obligations, Violations of NYCHRL

The Guidance lists five categories of potential violations: (1) failure to provide reasonable accommodations, (2) disparate treatment, (3) disparate impact, (4) retaliation, and (5) failure to provide the required notice. The Guidance also reviews employers’ compliance obligations under the NYCHRL’s pregnancy discrimination and reasonable accommodation requirements.

1. Failure to Provide Reasonable Accommodations

Employees may request accommodations based on pregnancy, childbirth, or related medical condition even if their medical condition does not amount to a disability. Further, under the NYCHRL, employers have accommodation obligations under this employee category regardless of whether and to what degree other non-pregnant employees are accommodated.

The Guidance categorizes the following “types” of accommodations and provides general and fact-specific examples:

  • Minor accommodations, schedule modifications, and alternative positions/assignments – Examples include minor changes in work schedules, adjustments to uniform requirements or dress codes, and additional water or snack breaks.
  • Leave related to childbirth, followed by reinstatement to the employee’s original job or to an equivalent position – Employers may request only medical documentation for leave requests beyond six weeks for a vaginal delivery and eight weeks for a caesarian section.
  • Accommodations related to lactation/expressing breast milk – Employers generally cannot limit the amount of time for this process (unless they can establish the time needed presents an undue hardship). Employers also generally must provide a clean and private area, other than a bathroom, and must provide a refrigerator to store breast milk in the workplace. Significantly, the Guidance also requires that employers permit employees to “express milk at their usual work station … so long as it does not create an undue hardship for the employer, regardless of whether a coworker, client, or customer expresses discomfort.”
  • Accommodations related to abortions, miscarriages, and fertility treatments – Examples include unpaid leave to recover and flexible scheduling to account for additional appointments related to the procedure or experience. Employers may request documentation.

The Guidance outlines a detailed process for employers’ obligations with respect to the “cooperative dialogue.” The process includes:

  • First, employers have an affirmative obligation to initiate a cooperative dialogue with an employee under these two circumstances: (1) when the employer learns (directly or indirectly) that an employee requires a reasonable accommodation due to pregnancy, childbirth, or related medical condition, or (2) when an employee has not requested an accommodation, but the employer knows that her work performance has been affected or that her work behavior may result in an adverse employment action and the employer has a reasonable basis to believe the issue is related to pregnancy, childbirth, or related medical condition.
  • Second, employers must engage in a cooperative dialogue, communicating in good faith with the employee in an open and expeditious manner, whether in person, by phone, or by electronic means (e.g., email). The Guidance prohibits employers from challenging the validity of an employee’s accommodation request, but urges employers to understand the need for the employee’s request and the ways in which the request could be accommodated. Factors the Commission will consider in determining whether an employer “engaged in a cooperative dialogue in good faith” include: (1) whether the employer has a written policy for requesting this type of accommodation; (2) whether the employer’s response to the employee’s request was timely, in light of the urgency of the request; (3) whether the employer attempted to explore the existence and feasibility of alternative accommodations or alternative positions; and (4) whether the employer attempted to obstruct or delay the cooperative dialogue or intimidate or deter the employee from requesting the accommodation. The Commission does not expect or require employers to provide the specific accommodation requested by an employee, as long as they propose reasonable alternatives that meet the employee’s specific needs or address the limitation at issue.
  • Third, employers must formally conclude the cooperative dialogue. The Commission says the cooperative dialogue is ongoing unless and until: (1) a reasonable accommodation will be provided; or (2) there is either no accommodation available that will not cause an undue hardship or that no accommodation will allow the employee to perform the essential requisites of the job. The Guidance notes that an employer should notify the employee promptly in writing of the determination. Since an employee’s condition may change over time, employers may be obligated to engage in cooperative dialogue multiple times during the course of an employee’s pregnancy.

In limited circumstances, employers may request medical documentation as part of the cooperative dialogue. Such requests may be made only: (1) if the employee is requesting time away from work, including for medical appointments, other than the six-to-eight-week period following childbirth for recovery from childbirth, and then only if the employer requests verification from other employees requesting leave-related accommodations for other reasons; or (2) if the accommodation request entails working from home on an intermittent or a longer-term basis. Moreover, while an employer may request additional documentation if the employer believes the initial documentation provided is insufficient, the employer cannot speak directly to the employee’s medical provider unless the employee provides consent to do so.

The Guidance states that “failure to engage in a cooperative dialogue with an employee prior to denying a request for accommodation may be tantamount to a failure to accommodate.”

Employers who are unable to provide a reasonable accommodation have affirmative defenses (demonstrate by a preponderance of the evidence):

  • Undue hardship, based on the factors as specified under the NYCHRL.
  • Essential requisites of the job, meaning the employee would not be able to satisfy the essential requisites of her job even with an accommodation. The employer also must be able to demonstrate that (1) there were no comparable positions available, and (2) a lesser position or an unpaid leave of absence were not acceptable to the employee or would pose an undue hardship.

2. Disparate Treatment

The Guidance identifies and provides examples of three circumstances that may give rise to a violation of the NYCHRL based on disparate treatment:

  • Treating individuals less well because of their pregnancy – Examples of violations include: not hiring someone who is otherwise qualified because she is pregnant, or suspending vacation and sick time accrual to an employee on leave to recover from childbirth but not doing so for employees on temporary disability leave.
  • Maintaining policies that single out pregnant individuals – Examples of violations include: refusing to hire pregnant individuals for specific positions, or refusing to consider them for certain promotions because the positions involve working with hazardous chemicals.
  • Engaging in conduct rooted in stereotypes or assumptions regarding pregnancy – Examples of violations include: not offering a promotion to a pregnant employee who is otherwise qualified based on the assumption that she likely will decide not to return to work after childbirth, or not assigning a pregnant employee to a new project after learning she is pregnant based on a concern that the employee will be distracted by the pregnancy.

3. Disparate Impact

The Commission also will evaluate neutral policies or practices that may have a disparate impact on individuals who are pregnant or perceived to be pregnant. It likely will scrutinize light duty policies (i.e., policies that permit workers to be moved to “light duty” for on-the-job injuries only), which the Commission view as having a disparate impact on pregnant employers unless the employer can demonstrate the policy bears “a significant relationship to a significant business objective of the covered entity or does not contribute to the disparate impact.”

4. Retaliation

The Guidance indicates that requesting a reasonable accommodation and engaging in the cooperative dialogue are both protected activities, and therefore any adverse employment action based on such activity constitutes retaliation under the NYCHRL.

5. Failure to Provide Notice Regarding Pregnancy Protections

Reiterating existing requirements, the Guidance states that failure to provide all employees with written notice of their right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions (by using the Commission’s “Pregnancy and Employment Rights” poster or some other means of notice) constitutes a violation of the NYCHRL. An employer also may post the notice in their place business in an area accessible to all employees.

Best Practices

The Guidance concludes with “best practice” suggestions for employers.

First, employers should maintain and distribute (to all employees) a written policy informing employees about the cooperative dialogue process that includes information on how to request an accommodation and explains what a cooperative dialogue looks like.

Second, when an employee notifies the employer of a pregnancy, the employee should be given a copy of the policy and be reminded of the availability of accommodations.

Third, consistent with the guidance on the City’s Stop Credit in Employment Act and others, employers also should maintain a detailed log that documents all efforts to initiate, engage in, and conclude the cooperative dialogue with an employee.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jackson Lewis P.C. | Attorney Advertising

Written by:

Jackson Lewis P.C.

Jackson Lewis P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.