On Sept. 24, 2013, the New York City Council approved a bill that will amend the administrative code of the city of New York to prohibit discrimination in employment based on pregnancy, childbirth or a related medical condition. The bill, which is veto-proof, will take effect 120 days after it becomes law and will require New York City employers with four or more employees (including independent contractors who themselves are not employers) to provide reasonable accommodations to non-essential job functions of "pregnant women and those who suffer medical conditions related to pregnancy and childbirth."
Currently, under the New York State Human Rights Law, it is illegal to discriminate against an employee because of gender or disability. While the state law does not mention pregnancy as a disability, the Human Rights Commission has held that diagnosed pregnancy-related morning sickness (among other things) qualifies as a disability requiring an accommodation. Furthermore, under New York State Human Rights Law [New York State Executive Law, Article 15, section 296(1) (g)], it is illegal to compel a pregnant employee "to take a leave of absence, unless the employee is prevented by such pregnancy from performing the activities involved in the job or occupation in a reasonable manner."
The new bill reaches far beyond the accommodation of diagnosable disabilities associated with pregnancy and childbirth under state law and will require accommodations to be made for even the simplest of needs—like relief from standing for long hours, additional bathroom breaks, breaks to facilitate increased water intake and assistance with manual labor—all for the stated purpose of ensuring and maintaining a healthy pregnancy without fear of negative job implications. It is important to note, however, that pursuant to section 296(1)(g) of the State Human Rights Law, when making a reasonable accommodation decision, including the new requirements of the New York City bill, an employer may not require the employee to take a leave of absence over the objections of the employee.
The only time a reasonable accommodation is not required is when an employer establishes an undue hardship after analyzing: (1) the nature and cost of the accommodation; (2) the overall financial resources of the facility involved, the number of persons employed at the facility, the effect on expenses and resources or the impact otherwise of an accommodation upon the operation of the facility; (3) the overall financial resources of the covered entity and the overall size of the business of a covered entity with respect to the number of its employees, as well as the number, type and location of its facilities; (4) the type of operation of the covered entity, including the composition, structure and functions of the workforce; and (5) the geographic separateness and administrative or fiscal relationship of the facility in question to the covered entity.
The bill also will require employers to provide written notice of rights (to be determined) to newly hired employees and to existing employees within 120 days after the effective date of the law. The notice "may also" be conspicuously posted at an employer's place of business in an area accessible to employees.
What This Means for New York City Employers
New York City employers should update their equal employment opportunity and reasonable accommodations policies, as well as train their managers to comply with this new bill when it becomes law.
Duane Morris LLP is a full-service law firm with more than 700 attorneys in the United States and internationally. Republished with permission. © 2013 Duane Morris. All rights reserved.