Philadelphia now expressly requires employers to provide reasonable workplace accommodations to pregnant employees and thus joins in a growing trend of jurisdictions expanding the rights of pregnant women in the workplace (including New York City and New Jersey). The requirement, which took effect on January 20, 2014, comes by way of an amendment to the Philadelphia Fair Practices Ordinance. The amendment came in response to reports that some job activities begin to pose a challenge for women during pregnancy, but that many of these challenges could be overcome with slight job modifications that would allow women to continue working during pregnancy. Testimony in support of the amendment highlighted the need for women to be able to continue working throughout their pregnancy because women are the primary or co-breadwinners in nearly two-thirds of all families.
What is required of Philadelphia employers under the ordinance?
Specifically, the amendment states:
It shall be an unlawful discriminatory employment practice for an employer to fail to provide reasonable accommodations to an employee for needs related to pregnancy, childbirth, or a related medical condition, provided (i) the employee requests such accommodations and (ii) such accommodations will not cause an undue hardship to the employer.
The amendment identifies a number of possible accommodations that may be required, including but not limited to:
- restroom breaks;
- periodic rest for those who stand for long periods of time;
- assistance with manual labor;
- leave for a period of disability arising from childbirth;
- reassignment to a vacant position; and
- job restructuring.
Who is considered an employer under the ordinance?
The Philadelphia Fair Practices Ordinance defines an employer “as any person who does business in the City of Philadelphia through employees or who employs one or more employees exclusive of parents, spouse or children, including any public agency or authority. . . .”
May an employer lawfully deny an accommodation request?
Yes; an employer will not be required to provide an accommodation to a pregnant worker if the accommodation would cause an undue hardship on the employer’s operations. The burden is on the employer to prove undue hardship. The amendment identifies several factors for determining undue hardship, including:
- the nature and cost of the accommodations;
- the overall financial resources of the employer’s facility or facilities involved in the provision of the reasonable accommodations, including the number of persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodations on the operations of the employer;
- the overall financial resources of the employer, including the size of the employer with respect to the number of its employees and the number, type, and location of its facilities; and
- the type of operation or operations of the employer, including the composition, structure and functions of the workforce, the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer.
The amendment also provides an affirmative defense to employers who deny such accommodation requests, if the employee could not perform the requisite functions of the job with a reasonable accommodation.
May an employer ask for medical documentation to support the accommodation request?
The amendment does not specifically address an employer’s right to request medical documentation in support of an accommodation request. If the requested accommodation is unclear, an employer may find it necessary to ask the employee for medical documentation to further elaborate on the accommodation request. An employer should note, however, that the amendment only allows an employer to deny the accommodation request if it causes an undue hardship. As such, where the accommodation does not cause an undue hardship, an employer should not deny the accommodation request simply because the employee failed to provide supporting medical documentation.
Are there any notice or posting requirements?
Yes; the amendment requires that Philadelphia employers provide written notice (in a form and manner to be determined by the Philadelphia Commission on Human Relations (“PCHR”)) by April 20, 2014. Such notice may also be posted conspicuously at an employer’s place of business in an area accessible to employees. Additionally, the PCHR is tasked with devising training programs to inform employers and the public of the rights and obligations under the amendment.
What steps should Philadelphia employers take to ensure compliance with the ordinance?
Employers with operations in Philadelphia should immediately revise their reasonable accommodation policies and procedures to reflect the new requirements included in the ordinance and train managers and human resources professionals on the changes. 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 employer’s operations.
- Document in writing the discussion about the accommodation and the final determination about how the accommodation request is resolved, including any undue hardship analysis.