The New York City Pregnant Workers Fairness Act (“NYC PWFA”), which takes effect January 30, 2014, requires New York City employers with four or more employees to provide reasonable accommodations for pregnancy, childbirth, and related medical conditions, unless the employer can demonstrate that the accommodation would cause an undue hardship. According to the New York City Council Committee on Civil Rights, this legislation was enacted in response to demographic trends that highlighted a critical need for increased protections for pregnant women in New York City. The Council found that an employee’s otherwise healthy pregnancy may require a workplace accommodation, such as periodic breaks, and that the stress resulting from a failure to obtain a reasonable accommodation could adversely affect a pregnant woman’s health. The Committee reported that this issue was critical given that women in New York City are the primary or co-breadwinners in nearly two-thirds of families, and single mothers head 34.2% of all households with children and over 82% of single-parent households.
What is required of New York City employers under the new law?
The NYC PWFA comes by way of an amendment to the New York City Human Rights Law and applies to all New York City employers who employ four or more persons—this calculation includes independent contractors who are not themselves employers. Under the NYC PWFA, a woman who is pregnant or has given birth is entitled to reasonable accommodation due to the pregnancy, childbirth, or a related medical condition so that she can perform the essential requisites of her job, unless such an accommodation would cause an undue hardship on the employer’s business. Factors in determining undue hardship include the nature and cost of the accommodation, the nature of the facility, and the overall finances of the business. The law does not specifically address an employer’s right to request medical documentation in support of an accommodation request. The law provides 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. Consequently, it is now unlawful for an employer to refuse to provide such a reasonable accommodation when the employee’s pregnancy, childbirth, or related medical condition is known, or should have been known, by the employer, absent a showing of undue hardship.
Posting and notice requirement
The law also requires New York City employers to provide written notice to all new employees upon hire and to existing employees no later than May 30, 2014. The law states that the notice may also be “conspicuously posted” at an employer’s place of business in areas accessible to employees. To that effect, the New York City Human Rights Commission has created a “Pregnancy and Employment Rights Posters” (available in seven languages, including, English, Chinese, Haitian Creole, Italian, Korean, Russian, and Spanish) that satisfies the notice requirement. The poster provides a concise summary of the rights of pregnant women under the NYC PWFA. The poster also contains examples of reasonable accommodations that a woman can request from her employer during the course of her pregnancy.
What steps should New York City employers take in response to a pregnant worker’s request for an accommodation?
As part of employer best practices, for each accommodation request, the employer should:
• Document in writing its receipt of the request for accommodation, providing a copy to the individual and retaining a copy for the employer’s records. This allows the employer to show that it took the request seriously and responded promptly.
• If the requested accommodation is unclear, ask the individual for medical documentation to support the accommodation request, including notes from doctors or other health care providers.
• Confer with the individual to discuss accommodation alternatives if the requested accommodation would impose an undue hardship on the business.
• Document in writing the discussion about the accommodation and the final determination about how the accommodation request is resolved, including any undue hardship analysis.