CLIENT UPDATE

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May 13, 2016

NYC Commission on Human Rights Issues Enforcement Guidelines on Pregnancy Discrimination in the Workplace

On Friday, May 6, 2016, Mayor Bill de Blasio and New York City’s Commission on Human Rights (“Commission”) jointly issued enforcement guidelines that provide specific examples to employers on how to accommodate pregnant employees, and further define pregnancy discrimination under the New York City Human Rights Law (“NYCHRL”).  The guidelines are available at http://www.nyc.gov/html/cchr/downloads/pdf/publications/Pregnancy_InterpretiveGuide_2016.pdf

The New York City Pregnant Workers Fairness Act, Local Law No. 78 (2013), N.Y.C. Admin. Code § 8-107(22) (a), effective January 30, 2014, affirmatively requires employers with four or more employees in New York City to provide reasonable accommodations to employees who need it for pregnancy, childbirth, or related medical conditions without having to qualify the need as a disability.  The guidelines provide guidance on the accommodation process.  For further information about the Act, see our Client Alert, “NYC Council Passes Pregnancy Discrimination Law”, available at http://www.putneylaw.com/cu_093013.html.

The Commission’s guidelines require employers to initiate a “cooperative dialogue” when the employer is on notice that an employee is in need of an accommodation based on pregnancy, childbirth, or a related medical condition.  The guidelines define reasonable accommodations as minor changes in work schedules, adjustment to uniform requirements or dress codes, additional water or snack breaks, allowing an employee to eat at her work station, extra bathroom breaks or additional rest breaks, physical modification to a work station (including a fan or seat), transfer to an alternative position, or modification of the schedule to be less strenuous.  The guidelines further specify that reasonable accommodations must be provided to employees who are recovering from childbirth, undergoing fertility treatments, have had abortions or miscarriages, or are breastfeeding.  In those cases, the law provides flexible schedules to attend fertility appointments, additional unpaid leave to recover from childbirth or a procedure, and reasonable time and a private space to express breast milk.

The guidelines specify that an accommodation must be granted unless it creates an undue hardship to the employer or the accommodation does not enable the employee to perform the essential requirements of the job.  An employer’s failure to engage in a “cooperative dialogue” or to do so in good faith is a violation of the law.  It is also a violation of the law for an employer to retaliate against an employee who requests a reasonable accommodation for pregnancy, child birth or a related medical condition.

The guidelines also provide specific examples of adverse treatment or policies that are considered a violation of the law.  According to the guidelines, it is unlawful for an employer to refuse to hire a pregnant applicant, fire an employee because she is pregnant, or deny a promotion to an otherwise qualified employee because she is pregnant.  It is also unlawful for an employer to prohibit an employee from accruing vacation and sick time while on maternity leave, or to repeatedly joke about a pregnant worker’s weight gain or emotional responses.

The guidelines further reinforce that under the NYCHRL, employers must provide written notice to new employees at the start of employment of the right to be free from discrimination on the basis of pregnancy, childbirth, and related medical conditions.  Employers must also post notice of such rights in the workplace that is accessible to employees.

Takeaway for Employers

Employers should understand that the NYCHRL and the Commission’s enforcement guidelines exceed what is required under federal and state law on pregnancy discrimination and providing reasonable accommodations to pregnant employees. Employers should review and update human resource policies to include rights to reasonable accommodations for employees who need it for pregnancy, childbirth, or related medical conditions as required under the NYCHRL and the Commission’s enforcement guidelines.  Employers should also ensure that supervisors and managers are properly informed and trained on conducting a “cooperative dialogue” for reasonable accommodation requests without retaliation, adverse treatment, or other violation of the law.  Employers must also take steps to adhere to the written notice and posting requirements under the law.

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If you have any questions regarding these guidelines, please do not hesitate to contact us.