New NYC Law Designed To Protect Pregnant Employees
On October, 2, 2013, Mayor Bloomberg signed into law additional protections for pregnant employees under the New York City Human Rights Law (NYCHRL). The Pregnancy Fairness Act[i] (“PFA”) expands the rights of women with pregnancy related issues in the workplace. It obligates employers to provide pregnant employees with reasonable accommodations unless doing so poses an undue hardship for the employer.[ii] Failure to provide a pregnant employee with a reasonable accommodation that enables her to manage both work and pregnancy is now considered an unlawful discriminatory employment practice.[iii] As such, violations of the PFA may be brought before the New York City Commission on Human Rights (NYCCHR).
Since the PFA is an addition to the NYCHRL, it covers most employers within the City. Any employer with at least four employees must comply with the PFA.[iv] Covered employers must provide their female employees, whether new or existing, with a notice of their rights under the PFA and the right to file a complaint with the NYCCHR for violations of the PFA and for retaliation. This should be done via notice to existing employees and an amendment to your employee handbook for future employees.
To ensure compliance it is important to understand what the PFA requires as reasonable accommodations. A reasonable accommodation is defined in the PFA as an accommodation that will not cause an undue hardship in the operations of the employer’s business.[v] Any accommodation that will cause an undue hardship on the employer is not considered reasonable and need not be provided. Each pregnant employee will be different, so it is important to consider these factors in each individual situation. The employer has the obligation to set forth facts as to why an accommodation posed an undue hardship and was thus, denied.[vii]
The PFA lists a number of factors to consider in ascertaining whether an accommodation poses an undue hardship, including (1) nature and cost of the accommodation, (2) the financial resources required to provide an accommodation, (3) the number of employees, (4) the effect the accommodation will have on a business’ expenses and resources, (5) the overall financial resources of the business, (6) the types of operations of the business, and (7) the functions of its workforce.[vi]
The New York City Council provided some examples of reasonable accommodations within the PFA.[viii] The examples entail allowing for short breaks when needed, allowing pregnant employees to rest periodically if their job description requires long periods of standing, and assisting the employee with manual labor.[ix] Invariably, even these accommodations may pose an undue hardship on employers engaged in businesses that require constant attention, such as working on a factory floor. However, the NYCCHR will most likely not look favorably upon the denial of simple periods of rest for pregnant employees where it is feasible, even in positions that require manual labor. Violations and/or retaliation will be treated like any Human Rights violation subject to compensation and punitive damages and will also be subject to an award for counsel fees in a private suit.
As the PFA goes into effect on January 29, 2014, it is advisable to alter or add internal policies to reflect the obligation to provide reasonable accommodations to female employees faced with pregnancy related issues. Doing so will help to ensure compliance and avoid disputes being brought before the NYCCHR.
Local Laws of the City of New York 2012, Law No. 2013/078, Int-0974-2012.
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