As most NYC employers have probably heard by now, in May of this year, New York City released guidance that defines violations of pregnancy protections under the NYC Human Rights Law, and provides clear(er) examples of when and how employers should make accommodations for employees based on pregnancy, childbirth or a related medical condition. The new guidance clarifies that employers not only have to accommodate pregnant workers, but also must follow some rather nuanced requirements not limited to just pregnancy.
Some of these requirements include:
- Employers must accommodate reasonable requests for things like minor changes in work schedules; adjustments in uniform requirements or dress codes; allowing for drinking, snacking and bathroom breaks; allowing employees to eat at their desks; providing seating; arranging for light duty or desk duty assignment; transferring workers to other available positions that are less strenuous or hazardous; and allowing for unpaid leave to recover from childbirth.
- Employees who are breastfeeding are also entitled to reasonable accommodations, such as a clean, sanitary and private space (other than a bathroom) to express milk along with a refrigerator to store the milk.
- Employees undergoing fertility treatment are also entitled to reasonable accommodations, such as a more flexible schedule to attend fertility appointments.
- Employees who have had abortions or miscarriages are also entitled to reasonable accommodations, such as additional unpaid leave to recover from a procedure.
- Employers are required to initiate and engage in a “cooperative dialogue” (as defined by the law) with employees 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 cooperative dialogue is ongoing until (1) a reasonable accommodation is reached or (2) the employer reasonably arrives at the conclusion that (a) there is no accommodation available that will not cause an undue hardship to the employer or (b) no accommodation exists that will allow the employee to perform the essential requisites of the job. Once a conclusion is reached, an employer should promptly notify the employee in writing of the determination. Failure to do so may result in a violation of the law.
- Employers may not require an employee to provide medical confirmation of pregnancy, childbirth or related medical condition, except when (1) an employee is requesting time away from work, including for medical appointments, other than the presumptive six-to-eight-week period following childbirth for recovery from childbirth, and may do so only if the employer requests verification from other employees requesting leave-related accommodations for reasons other than pregnancy, childbirth or related medical condition, or (2) an employee is requesting to work from home, either on an intermittent basis or a longer-term basis.
- Employers may not retaliate against employees for requesting reasonable accommodations for pregnancy, childbirth or a related medical condition.
The list above summarizes only some of the nuanced requirements, but the guidance makes clear that employers will now be required to make other accommodations for employees based on pregnancy, childbirth or a related medical condition, as well. These nuances should not be taken lightly, as failure to comply with any of them could result in a violation of the NYC law. BakerHostetler’s Employment Group is available to help you comply with even the most surprising requirements of the law.