NYC Issues Guidance Providing Expansive Rights to Pregnant Individuals and New Mothers in the Workplace

On May 6, 2016, the New York City Commission on Human Rights announced enforcement guidance on the New York City Pregnant Workers Fairness Act to help pregnant individuals and new mothers better understand their rights in the workplace and to clarify employers’ legal obligations to such individuals, particularly with respect to the accommodations that must be provided. The Pregnant Workers Fairness Act, which went into effect in 2014 and was codified in the New York City Human Rights Law (“NYCHRL”), prohibits discrimination based on, and mandates reasonable accommodations for, pregnancy, childbirth and related medical conditions, without necessitating that the employee’s limitation qualifies as a legally protected disability. The guidance notes that because of the time-sensitive nature and relatively short duration of the need for accommodation during pregnancy and postpartum, reasonable accommodations related to pregnancy, childbirth and related medical conditions are to be “liberally granted.”

The guidance is very detailed and provides many specific examples of prohibited employer conduct and the particular accommodations that may need to be provided to pregnant employees and new mothers. For the full text of the guidance, see http://www1.nyc.gov/site/cchr/law/legal-guidances.page. Summarized below are the key provisions of the guidance.

Expanded Definitions Under the Guidance

• Pregnancy is defined as “being pregnant and symptoms of pregnancy, including, without limitation, nausea, morning sickness, dehydration, increased appetite, swelling of extremities, and increased body temperature.”
• 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, but not limited to, infertility, gestational diabetes, pregnancy induced hypertension, preeclampsia, post-partum depression, miscarriage, lactation; and recovery from childbirth, miscarriage, and termination of pregnancy.”

Expanded Causes of Action for Pregnancy Discrimination Under the NYCHRL

The guidance sets forth five potential causes of action that may be asserted for pregnancy discrimination under the NYCHRL. Although the causes of action outlined in the guidance are not new, the Commission has expanded the bases on which a violation may be found under the NYCHRL.

1. Disparate Treatment
   • Disparate treatment may be demonstrated by a showing that an individual has been treated “less well” than others because of her pregnancy or perceived pregnancy.
   • Examples of disparate treatment are not allowing a worker to continue to accrue vacation and sick time while on maternity leave despite allowing others on temporary disability leave to accrue such time, repeatedly joking about a pregnant worker’s weight gain, and maintaining policies that single out pregnant individuals.
   • The guidance specifically prohibits employer conduct based on stereotypes or assumptions about pregnant employees, such as not offering a promotion to a pregnant worker because of the perception she may not return to work after giving birth or passing over a pregnant employee for a new project.
2. Failure to Provide Reasonable Accommodations
   • Employees are entitled to an accommodation based on pregnancy, childbirth or a related medical condition, even if the medical condition does not amount to a disability and even if other nonpregnant employees are not accommodated, unless either the accommodation will pose an undue hardship on the employer or an employee is nonetheless unable to satisfy the essential requisites of her position.

Potential Types of Accommodations to Be Provided

The types of accommodations that may need to be provided to pregnant employees include (a) minor changes to work schedules, (b) temporary shift reassignments, (c) additional water, bathroom, rest or snack breaks, (d) adjustments to uniform requirements or dress codes, and (e) allowing an individual to eat at her workstation. The guidance states 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 the employee to be accommodated so as to remain in her current position. When the employee cannot be accommodated in her current position and no alternative positions are available, an employee may be offered an unpaid leave of absence.
• Leave requests to recover from childbirth must be granted absent an undue hardship, and employers must reinstate employees returning from such leave to their original job or an equivalent position.
• New mothers who are breast-feeding are entitled to time to express breast milk (with no limit on the amount of time provided absent an undue hardship to the employer) and access to a clean and private area, other than a bathroom, that is “conveniently located and reasonably near the employee’s workstation” and a refrigerator to store breast milk. Employees must 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.”
• Employees who are undergoing fertility treatment or who have had an abortion or miscarriage are also entitled to reasonable accommodations such as light duty, a more flexible schedule to attend related appointments or unpaid time to recover from any procedures.

Cooperative Dialogue

• An employer is required to initiate and engage in good faith in a “cooperative dialogue” with an employee when the employer is on notice that the employee may need an accommodation due to pregnancy, a related medical condition or childbirth.
• In determining whether an employer engaged in a good faith cooperative dialogue with an employee, the Commission will consider (a) whether the employer has a written policy regarding requests for accommodation, (b) whether the employer’s response to the request was timely, considering the urgency of the request, (c) whether the employer attempted to explore the existence and feasibility of various accommodations, including alternative positions, and (d) whether the employer attempted to obstruct or delay the cooperative dialogue or to intimidate or deter the employee from requesting the accommodation.
• An employer need not provide the specific accommodation sought by the employee so long as the employer proposes reasonable alternatives that meet the specific needs of the employee or that specifically address the limitation at issue.
• An employer must also formally conclude the cooperative dialogue upon a determination either that a reasonable accommodation will be provided, there is no accommodation available that will not cause an undue hardship to the employer or no accommodation will allow the employee to perform the essential requisites of the job. An employer must promptly notify the employee in writing of the determination.
• Employers may request medical documentation in connection with the cooperative dialogue only (a) where the employee is requesting time away from work other than for the standard six-to-eight-week recovery period after childbirth and the employer requests verification from other employees requesting leave-related accommodations for other reasons, and (b) if the accommodation request entails working from home on an intermittent or longer-term basis.
• In light of the potential changes in an employee’s condition, the employer may need to engage in the cooperative dialogue multiple times during the course of an employee’s pregnancy.
• An employer’s failure to engage in a cooperative dialogue may constitute a violation of the NYCHRL, as a failure to accommodate.

Employer Defenses

• In order to deny an accommodation, an employer must prove, by a preponderance of evidence, the existence of an undue hardship or that the employee’s inability to satisfy the essential requisites of the job.

1. Failure to Post or Provide Notice Regarding Pregnancy Protections
   • Employers are required under the NYCHRL to provide all employees with written notice of their right to be free from discrimination in relation to pregnancy, childbirth and related medical conditions. This obligation may be satisfied by using the Commission’s Pregnancy and Employment Rights poster.
2. Disparate Impact
   • Policies or practices that have a disparate impact on individuals who are pregnant or perceived to be pregnant may violate the NYCHRL unless the employer 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.”
   • For example, according to the Commission, a policy permitting light-duty assignments only for employees injured on the job would likely have a disparate impact on pregnant workers.
3. Retaliation
   • Retaliation against an employee who requests an accommodation or who participates in the cooperative dialogue is unlawful.

Takeaways for Employers and Best Practices

The Pregnant Workers Fairness Act and the recently announced enforcement guidance represent a significant expansion of rights for pregnant workers and new mothers employed in New York City. The Commission suggests the following best practices for employers to ensure their compliance with the law. First, employers should develop written policies to provide information to employees on how accommodations for pregnancy, childbirth, or related medical conditions will be handled and explaining the cooperative dialogue process. Second, when an employee notifies the employer of a pregnancy, the employee should be given a copy of the policy and reminded of the availability of accommodations. Third, employers should maintain detailed logs of their efforts to initiate, engage in and conclude the cooperative dialogue with each employee. Fourth, employers should be sure to maintain the confidentiality of communications surrounding an employee’s pregnancy, childbirth, or related medical condition and requests for accommodation.

In addition, employers must ensure managers understand that special protections are afforded to pregnant workers and new mothers under city law and know to bring any related issues to the attention of Human Resources or another appropriate representative. Employers must also update their policies and practices to ensure compliance with the expanded protections afforded to pregnant employees and new mothers employed in New York City.