On September 24, 2013, the New York City Council unanimously approved legislation that requires most New York City employers to provide reasonable accommodation for an employee’s pregnancy, childbirth or related medical conditions. While the legislation must be approved by the Mayor to become law, the City Council passed the measure by a seemingly veto-proof 47-0 vote. The law takes effect 120 days after the Mayor approves the measure or the City Council overrides the Mayor’s veto, whichever applies.Employers should expect the law to go into effect in the first months of 2014. Thus, New York City appears poised to join a growing number of jurisdictions, including California and Maryland (effective October 1, 2013), that mandate some form of accommodation to pregnant employees. These state and local requirements must be satisfied in addition to any accommodations required under federal laws such as the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA).
Employers with at least four employees are subject to this new law, which provides a non-exhaustive list of examples of reasonable accommodation, including bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate water intake, periodic rest for those who stand for long periods of time and assistance with manual labor, among other things.
Employers are not required to provide otherwise reasonable accommodations that cause undue hardship(i.e., significant operational difficulty and/or expense), but the employer has the burden of proving the undue hardship. An employee who believes her employer has refused to provide reasonable accommodation for her pregnancy, childbirth or related medical condition can file a complaint with the New York City Commission on Human Rights (NYCCHR) or bring a lawsuit in court seeking damages, including uncapped punitive damages. The rights granted to pregnant employees under this new law add to the existing rights prohibiting discrimination based upon sex and pregnancy under federal, state and city law.
Finally, covered employers are required to provide written notice to new and existing employees of their right to be free from discrimination due to pregnancy, childbirth and related medical conditions in a form and manner determined by the NYCCHR.
While the law is not yet effective, and awaits the approval of the Mayor, given the seemingly veto-proof vote of the City Council, employers may want to anticipate the enactment of this law and consider taking the following actions:
• Review with counsel their policies on reasonable accommodation;
• Review their policies, practices or contractual agreements with respect to alternative work arrangements or restricted/light duty programs; and
• Train managers and supervisors regarding procedures for responding to accommodation requests from pregnant employees.