On May 6, 2016, the New York City Commission on Human Rights announced “enforcement guidance” regarding the New York City Pregnant Workers Fairness Act, to help pregnant women and new mothers who work in NYC better understand their workplace rights. This is all good.
The Pregnant Workers Fairness Act of 2014 is an amendment to the New York City Human Rights Law (“NYCHRL”), which prohibits discrimination based on pregnancy, childbirth and related medical conditions. Unlike the New York State Human Rights Law and the federal Pregnancy Discrimination Act, the NYCHRL does not require that your pregnancy-related limitation qualify as a legally protected disability. The City law requires your employer to “reasonably accommodate” your pregnancy simply because you are pregnant. This means that your employer needs to chat with you as if they cared about your pregnancy and your related need for some flexibility to enable you to continue performing your job until your water breaks.
The guidance notes that because of the time-sensitive nature and the relatively short duration of the need for flexibility during your pregnancy, reasonable accommodations related to pregnancy, childbirth and related medical conditions are to be “liberally granted.” That means that your employer better have a good excuse to mess with you when you’re pregnant. This is big news.
The full text of the guidance is here, but as it reads like stereo instructions, here’s a summary:
Expanded Definitions Under the NYCHRL
Pregnancy is defined as “being pregnant and symptoms of pregnancy, including, nausea, morning sickness, dehydration, increased appetite, swelling of extremities, and increased body temperature,” and a “related medical condition” is defined as “the state of seeking to become pregnant; any medical condition that is related to or caused by pregnancy or childbirth, including, infertility, gestational diabetes, pregnancy induced hypertension, preeclampsia, post-partum depression, miscarriage, lactation; and recovery from childbirth, miscarriage, and termination of pregnancy.” In other words, any pregnancy-related circumstance will require your employer to be flexible with you, and they certainly can’t make your life more miserable just because they’re upset that you’re with child and didn’t consult their timetable in advance to see if your company approves of the timing of your pregnancy and maternity leave.
Expanded Legal Claims for Pregnancy Discrimination Under the NYCHRL
The guidance sets forth five basic potential causes of action that may be asserted for pregnancy discrimination under the NYCHRL.
- Disparate Treatment
Disparate, or differential treatment may be demonstrated by a showing that you have been treated “less well” than others because of your pregnancy or your perceived pregnancy.
An examples of disparate treatment would be not allowing you to continue to accrue vacation and sick time while on maternity leave even though your employer allows others on temporary disability leave to accrue such time, or, subjecting you to repeated “joking” about your pregnancy weight gain, or maintaining policies that single you out as a pregnant employee.
Your employer is specifically prohibited from conduct based on assumptions about pregnant women, such as not offering you a promotion because of the perception you won’t return to work after giving birth, for just one example.
- Failure to Provide a Reasonable Accommodation
Under the NYCHRL, you are entitled to a workplace “accommodation” based on your pregnancy, childbirth or a related medical condition, even if the medical condition does not amount to a disability (this is important and unique to women who work in NYC), unless the accommodation poses an “undue hardship” on the employer, or you’re unable to satisfy the essential functions of your job even with the requested reasonable accommodation.
Potential Types of Accommodations to Be Provided
The types of accommodations you’re entitled to are (a) minor changes to your work schedule, (b) temporary shift reassignments, (c) additional water, bathroom, rest or snack breaks, (d) adjustments to uniform requirements or dress codes, and (e) allowing you to eat at your workstation. The guidance says that such modifications will rarely pose an undue hardship on an employer. In addition, a schedule modification, job restructuring or reassignment to a vacant position may qualify as a reasonable accommodation, including, for example, (a) adjustment to start or end time, (b) reduced or modified work schedule, (c) desk duty or light duty, and (d) transfer to an alternative position when it is not possible for you to be accommodated to keep you in your current job. Only in the unlikely event that you cannot be accommodated in your current position–and no alternative positions are available–then you may be offered a protected, but unpaid leave of absence.
Leave requests to recover from childbirth (a.k.a. maternity leave) must be granted unless there’s a legitimate undue hardship, and your employer must reinstate you to your original position, or at the least an equivalent one, when you return from the maternity leave they must provide to you.
New mothers who are breast-feeding are entitled to time to express breast milk (with no set time limit) and with access to a clean and private area, not a bathroom, that is “conveniently located and reasonably near your workstation,” and, a refrigerator to store breast milk. Employees must t also be permitted to “express milk at their usual work station … so long as it does not create an undue hardship for the employer, regardless of whether a coworker, client, or customer expresses discomfort.” Pretty civilized, isn’t it? Remember, at this time, such a great law only covers women who are lucky enough to work in one of the five boroughs comprising New York City.
If you’re undergoing fertility treatment or you’ve had an abortion or a miscarriage, you are also entitled to reasonable accommodations such as light duty, a more flexible schedule to attend related doctor’s appointments, or unpaid time to recover from any procedures, unless you have accrued time you want to use for such purpose, but your company can’t fire or otherwise punish you for taking the time, whether it’s paid or unpaid.
The Required Interactive Process
Your employer is required to initiate and engage in a good faith interactive process, or “cooperative dialogue” with you once they know that you may need an accommodation due to pregnancy, or due to a pregnancy-related medical condition, or childbirth. In other words, they need to chat with you about your workplace needs now that you’re pregnant.
After engaging in this interactive cooperative dialogue with you to determine your need for flexibility (the reasonable accommodation), the employer must determine whether an accommodation will be provided to help you remain healthy and employed while pregnant, and then the employer must promptly notify you in writing of its accommodation decision.
Your company may only request medical documentation from you in connection with your pregnancy accommodation request (a) when you’re requesting time away from work in excess of the standard six-to-eight-week recovery period after childbirth (and the employer requests verification from other employees requesting leave-related accommodations for reasons other than pregnancy), and (b) if the accommodation request entails working from home on an intermittent or long-term basis.
Due to the potential changes in your condition during pregnancy, your employer may need to engage in this cooperative dialogue multiple times during your pregnancy, and your company’s failure to engage in a cooperative dialogue is already a violation of the NYCHRL, just as a failure to reasonably accommodate your pregnancy is a violation of the city law.
Employer Defenses
In order to deny your request for an accommodation, your employer must prove the existence of an “undue hardship” (not easy to do) or, they must prove that you could not satisfy the essential requirements of your job, even with the requested reasonable accommodation (also not easy to do).
- Failure to Post or Provide Notice Regarding Pregnancy Protections
Your employer is required under the NYCHRL to provide you and all employees with written notice of your right to be free from discrimination in relation to pregnancy, childbirth and related medical conditions, even if it’s just a conspicuously posted Pregnancy and Employment Rights poster issued by the New York City Commission on Human Rights.
- Disparate Impact
Policies or practices that have a disparate (or differential) impact on individuals who are pregnant or perceived to be pregnant will also violate the NYCHRL unless your company can show that the policy or practice bears “a significant relationship to a significant business objective of the covered entity or does not contribute to the disparate impact.”
So, for example, the NYCHRL would not allow a policy permitting light-duty assignments only for employees injured on the job, as that would likely have a disparate or negative impact on pregnant employees, as pregnant employees were not injured on the job so you’d be excluded.
- Retaliation
It’s straight up illegal to retaliate against an employee who requests an accommodation or who participates in the cooperative dialogue, just as pregnancy discrimination itself is illegal. So, if you normally stand at work but you ask your employer for a chair to occasionally sit on during your pregnancy and they treat you worse as a result, that would be illegal retaliation.
The Pregnant Workers Fairness Act represent a significant expansion of rights for pregnant workers and new mothers employed in New York City. You should understand, as your employer must understand too, that special protections are afforded to pregnant women and new mothers under the NYCHRL, so you must notify your employer’s Human Resources person (or any other appropriate representative) that you’re pregnant as soon possible once you’re ready to announce, and document any requests for a reasonable accommodation, too. Your employer must maintain the confidentiality of your pregnancy and any requests for an accommodation.
If you have specific questions related to your work environment in relation to your pregnancy or post-partum return, please contact me, or Deborah O’Rell for a free and confidential discussion.