New York City Releases Guidance on Pregnancy Accommodation Requirements

The New York City Commission on Human Rights (“Commission”) recently released a guide on how the pregnancy accommodations under the New York City Pregnant Workers Fairness Act will be enforced.  The guide outlines five categories of potential violations, summarized below:

1. Disparate Treatment: The Guide provides examples of three circumstances that could be a violation based upon disparate treatment of an employee:
   1. Treating an individual less well because of pregnancy, such as making jokes about her weight gain or ascribing an individual’s complaints as simply being part of the pregnancy;
   2. Using policies/procedures that single out pregnant individuals, such as refusing to consider certain employees for promotion due to the fact they are or could be pregnant and may wish to take leave; or
   3. Actions rooted in stereotypes or assumptions regarding pregnancy, such as refusing to restore an employee to former high-level responsibilities due to the assumption she will be too busy caring for a newborn to fulfill her responsibilities. 

2. Failure to Provide Reasonable Accommodations for Pregnancy, Childbirth or a Related Medical Condition: The New York City Human Rights Law (“NYCHRL”) requires employers to provide reasonable accommodations for employee pregnancy, childbirth or related medical conditions, which will allow an employee to perform their essential job duties.  Employers must initiate and engage in a good faith, cooperative dialogue with an employee upon learning, directly or indirectly, that an employee requires such an accommodation.  The cooperative dialogue will be considered concluded when (1) a reasonable accommodation is reached, or (2) the employer finds that no accommodation exists that will not cause an undue hardship on the employer or will allow the employee to perform the essential job duties.  If the employer finds that no accommodation can be made, it must notify the employee in writing. 

3. Disparate Impact: Otherwise neutral employment policies or procedures that exclude or disproportionately impact pregnant individuals, or individuals perceived to be pregnant, may be considered a violation of the NYCHRL. 

4. Retaliation: Employers are prohibited from (1) retaliating against employees who request a reasonable accommodation; and (2) refusing to participate in the cooperative dialogue surrounding an accommodation request. 

5. Failure to Provide Notice Regarding Pregnancy Protections: Failure to provide all employees written notice of pregnancy protections at time of hire may constitute a violation.  Employers are also required to communicate pregnancy protections by either posting the “Pregnancy and Employment Rights” poster produced by the Commission, or another equivalent written notice, in a conspicuous location accessible by all employees.

The guide also includes a section on best practices for employers.  Chief among the suggestions is for employers to develop a written policy that communicates the cooperative dialogue process.  This policy should be distributed in handbooks and whenever an employee notifies the employer of pregnancy.  Further, employers are also recommended to document all communications and efforts regarding a cooperative dialogue.

Action Items: