What Employers Need to Know About the New York City Pregnancy Accommodation Enforcement Guidance


The New York City Commission on Human Rights has released enforcement guidance on the New York City Pregnant Workers Fairness Act identifying five categories of potential violations and emphasizing the need to engage in cooperative dialogue to reach accommodation. The Act, passed in 2013 and codified in the New York City Human Rights Law, protects against discrimination and mandates reasonable accommodations based on pregnancy, childbirth, or related medical condition.

Key sections of the “Legal Enforcement Guidance on Discrimination on the Basis of Pregnancy” are reviewed below.

Definitions

Compliance Obligations, Violations of NYCHRL

The Guidance lists five categories of potential violations: (1) failure to provide reasonable accommodations, (2) disparate treatment, (3) disparate impact, (4) retaliation, and (5) failure to provide the required notice. The Guidance also reviews employers’ compliance obligations under the NYCHRL’s pregnancy discrimination and reasonable accommodation requirements.

1. Failure to Provide Reasonable Accommodations

Employees may request accommodations based on pregnancy, childbirth, or related medical condition even if their medical condition does not amount to a disability. Further, under the NYCHRL, employers have accommodation obligations under this employee category regardless of whether and to what degree other non-pregnant employees are accommodated.

The Guidance categorizes the following “types” of accommodations and provides general and fact-specific examples:

The Guidance outlines a detailed process for employers’ obligations with respect to the “cooperative dialogue.” The process includes:

In limited circumstances, employers may request medical documentation as part of the cooperative dialogue. Such requests may be made only: (1) if the employee is requesting time away from work, including for medical appointments, other than the six-to-eight-week period following childbirth for recovery from childbirth, and then only if the employer requests verification from other employees requesting leave-related accommodations for other reasons; or (2) if the accommodation request entails working from home on an intermittent or a longer-term basis. Moreover, while an employer may request additional documentation if the employer believes the initial documentation provided is insufficient, the employer cannot speak directly to the employee’s medical provider unless the employee provides consent to do so.

The Guidance states that “failure to engage in a cooperative dialogue with an employee prior to denying a request for accommodation may be tantamount to a failure to accommodate.”

Employers who are unable to provide a reasonable accommodation have affirmative defenses (demonstrate by a preponderance of the evidence):

2. Disparate Treatment

The Guidance identifies and provides examples of three circumstances that may give rise to a violation of the NYCHRL based on disparate treatment:

3. Disparate Impact

The Commission also will evaluate neutral policies or practices that may have a disparate impact on individuals who are pregnant or perceived to be pregnant. It likely will scrutinize light duty policies (i.e., policies that permit workers to be moved to “light duty” for on-the-job injuries only), which the Commission view as having a disparate impact on pregnant employers unless the employer can demonstrate the policy bears “a significant relationship to a significant business objective of the covered entity or does not contribute to the disparate impact.”

4. Retaliation

The Guidance indicates that requesting a reasonable accommodation and engaging in the cooperative dialogue are both protected activities, and therefore any adverse employment action based on such activity constitutes retaliation under the NYCHRL.

5. Failure to Provide Notice Regarding Pregnancy Protections

Reiterating existing requirements, the Guidance states that failure to provide all employees with written notice of their right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions (by using the Commission’s “Pregnancy and Employment Rights” poster or some other means of notice) constitutes a violation of the NYCHRL. An employer also may post the notice in their place business in an area accessible to all employees.

Best Practices

The Guidance concludes with “best practice” suggestions for employers.

First, employers should maintain and distribute (to all employees) a written policy informing employees about the cooperative dialogue process that includes information on how to request an accommodation and explains what a cooperative dialogue looks like.

Second, when an employee notifies the employer of a pregnancy, the employee should be given a copy of the policy and be reminded of the availability of accommodations.

Third, consistent with the guidance on the City’s Stop Credit in Employment Act and others, employers also should maintain a detailed log that documents all efforts to initiate, engage in, and conclude the cooperative dialogue with an employee.


Jackson Lewis P.C. © 2024
National Law Review, Volume VI, Number 139