The city departs from federal law by requiring employers to accommodate pregnant employees even if not considered “disabled.”
Departing from federal precedent, the New York City Council on September 24 passed an amendment to the New York City Human Rights Law that requires employers to reasonably accommodate pregnant employees whether or not they are “disabled” as defined by law. The amended law contemplates that reasonable accommodations may include “bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor, among other things.” The New York City Council passed the amendment by a unanimous veto-proof vote, which means it is expected to become law whether or not Mayor Michael Bloomberg signs it. Once it goes into effect, the law will apply to all employers within New York City that have four or more employees.
The new law will impose a high burden on employers, requiring that all accommodations be granted so long as they do “not cause undue hardship . . . [to] the covered entity’s business.” The language of the law states that an accommodation will be presumed reasonable unless an employer can demonstrate undue hardship.
The law requires employers to give written notice to “new employees at the commencement of employment” and to “existing employees within one hundred twenty  days after the effective date.” Although not expressly required, the law also states that “notice [of the new rights] may . . . be conspicuously posted at an employer’s place of business in an area accessible to employees.”
The law will be a significant change for employers because it stands in contrast to precedent interpreting the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), the New York State Human Rights Law, and the New York City Human Rights Law holding that employers need only treat pregnant employees the same as other employees with respect to accommodations and that job modifications are not generally required for employees experiencing a normal pregnancy. This change comes on the heels of similar legislation passed in Maryland earlier in 2013 that also aimed to provide more accommodations to pregnant women who require light-duty assignments. The Maryland law was passed in response to the U.S. Court of Appeals for the Fourth Circuit’s decision in Young v. United Parcel Service, Inc., holding that neither the ADA nor the PDA required an employer to provide light-duty assignments to pregnant employees so long as light duty was also unavailable to nonpregnant workers. 707 F.3d 437 (4th Cir. 2013). The Young decision has been appealed and is currently pending certiorari to the U.S. Supreme Court.
Employers with operations in New York City should review their reasonable accommodation policies to determine whether they should be revised to reflect these new requirements. Furthermore, human resources and benefits employees should be trained on the new requirements, and employers should consider adding information about these requirements to their manager training programs. In addition, once the law goes into effect, employers should issue written notice regarding the amendment to their employees and may want to consider posting notice of the new law’s requirements in areas where other workplace notices are posted.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis attorneys:
Rene M. Johnson
Michelle S. Silverman
David A. McManus
Ira G. Rosenstein
. The law will become effective upon the first to occur of (i) signature of the mayor, (ii) the mayor’s veto and the subsequent override of the veto, or (iii) the mayor’s inaction for 30 days.