Reasonable Accommodations for Pregnant Employees Are Now Required in New York City and New Jersey
Paula Lopez, February 5, 2014.
Employers in New York City and New Jersey are now required to provide reasonable accommodations to pregnant employees. While State and Federal laws prohibit employers from discriminating against pregnant employees, none of these laws require employers to provide reasonable accommodations. Instead, reasonable accommodations have only been required to the extent that they are available to similarly-situated non-pregnant employees.
Effective January 30, 2014, the New York City Human Rights Law was amended to prohibit discrimination based on pregnancy, childbirth or related medical conditions. And, on January 21, 2014, New Jersey’s Law Against Discrimination was amended to include pregnancy to the list of protected classes and to prohibit employers from treating pregnant employees less favorably than non-pregnant employees with similar work abilities.
The key significance of both laws is that they require employers to provide pregnant employees with reasonable accommodations if the employer knows or should have known of the condition and the reasonable accommodation does not cause the employer an undue hardship. Examples of reasonable accommodations required under the new laws include, among others: periodic breaks for rest, bathroom breaks, additional breaks to facilitate water intake, assistance with manual labor, job restructuring or modified work schedules, temporary transfers to less strenuous or hazardous work, and leave for a period of disability arising from childbirth.
In New York City, employers with four or more employees are covered under the law and independent contractors are counted as employees in determining the applicability of the law. In New Jersey all employers (except Federal employers), regardless of their size, are covered by the law.
In both New York City and New Jersey, if an employer demonstrates that a requested accommodation causes undue hardship on its business, the employer does not have to provide it. The employer bears the burden of proving the existence of an undue hardship.
The laws identify the following factors in determining whether the requested accommodation imposes an undue hardship:
- Nature and cost of accommodation;
- Overall financial resources of the employer’s particular facility(s) involved in providing the accommodation, taking into account the number of employees, the effect of expenses and resources and/or impact the accommodation will have on the particular facility;
- Overall financial resources of the covered employer (including the number of employees, and the number, type and location of its facilities);
- The type of operations the employer is engaged in (including composition, structure and functions of the workforce),
- The geographic separateness, administrative or fiscal relationship of the facility(s) involved in providing the accommodation and the overall operations of the covered employer; and
- The extent to which the requested accommodation would involve eliminating an essential job requirement. New Jersey only.
In New York City, an employer can also avoid liability under the new law if it can demonstrate that, even with the reasonable accommodation, the employee cannot perform essential job functions.
The New York City amendment includes a notice provision that requires employers to provide employees with written notice of the law. The notice must be provided to new employees at the time of hire and to existing employees within 120 days of the law’s effective date (May 30, 2014). The New York City Commission on Human Rights has created posters in various languages advising pregnant employees of their rights and providing examples of the types of reasonable accommodations that can be requested from their employers. Employers can circulate these posters to satisfy the law’s notice requirement. It is also suggested that employers conspicuously post the notice in areas accessible to their employees. New Jersey’s amendment does not contain a similar notice requirement, but continues to require employers to conspicuously post the New Jersey Division of Civil Rights’ official employment discrimination poster in the workplace.
The amendments to New Jersey and New York City’s ant-discrimination laws significantly expand the protections afforded to pregnant workers by expressly requiring employers to provide reasonable accommodations to all pregnant employees. Consequently, affected employers should review their policies and procedures to ensure compliance with the law.
 The poster currently available has not yet been updated to reflect the amendment.