New York City and New Jersey Provide More Protections for Pregnant EmployeesJanuary 2014
New York City and New Jersey have significantly expanded workplace protections for pregnant women and women who recently have given birth. On January 21, 2014, an amendment to New Jersey's Law Against Discrimination went into effect, and a similar amendment to New York City's Human Rights Law went into effect on January 30, 2014. These amendments provide employees who are pregnant or who have recently given birth far greater rights than currently required under the federal Pregnancy Discrimination Act (an amendment to Title VII of the 1964 Civil Rights Act that took effect 35 years ago) and most state laws.
New Jersey's PWFA
New Jersey's Law Against Discrimination is a comprehensive anti-discrimination statute prohibiting New Jersey employers from discriminating against employees on the basis of, among other things, race, religion, national origin, age, sex, disability, marital status, sexual orientation, and/or gender identity or expression.
As of January 21, 2014, New Jersey's PWFA expanded employee protections under New Jersey's Law Against Discrimination by adding pregnancy to the protected classes listed above. This includes pregnant women, and women who have medical conditions related to pregnancy or childbirth. In doing so, it requires employers to provide a reasonable accommodation to pregnant women who request it on the advice of a medical care provider.
Although the amendment states that it does not entitle women to an extended pregnancy leave of absence, employers are expected to provide other accommodations, such as:
- bathroom breaks
- breaks for increased water intake
- periodic rest
- assistance with manual labor
- job restructuring or modified work schedules
- temporary transfers to less strenuous or hazardous work
Unlike accommodations that employers are required to provide to employees with disabilities, accommodations for pregnant women and pregnancy-related conditions are not limited to those that would assist the employee to perform the essential functions of the job, and thus may encompass a much broader range of potential accommodations.
Employers may avoid this requirement only by showing that implementing the proposed accommodation would impose an undue hardship. Whether the requested accommodation constitutes an undue hardship on the operation of the business, employers are to consider:
- the overall size of the employer's business with respect to the number of employees, number and type of facilities, and size of budget;
- the type of the employer's operations, including the composition and structure of the employer's workforce;
- the nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions, and outside funding; and
- the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or nonbusiness necessity requirement.
New York City's PWFA:
The amendment to New York City's Human Rights Law is quite similar to New Jersey's PWFA (and laws in eight other states), requiring employers to provide a reasonable accommodation to any employee resulting from pregnancy, childbirth, or related medical condition so long as it does not cause an undue hardship to the employer.
Such accommodations may include, among other things:
- bathroom breaks
- leave for a period of disability arising from childbirth
- breaks to facilitate increased water intake
- periodic rest for those who stand for long periods of time
- assistance with manual labor
But unlike New Jersey's PWFA, it does not specifically require that employers consider temporary transfers to less strenuous or hazardous work.
As of January 30, 2014, covered New York City employers also will be required to provide the following written notice to all new employees of their rights under this amendment. All existing employees will be expected to receive a copy of the poster by May 30, 2014. In lieu of providing written notice, the poster also may be conspicuously posted in the employer's business in a place accessible to employees.
These amendments may not be the only legislative action taken with respect to pregnant employees in the near future. Currently, a bill that would provide pregnant women with even greater protections than those afforded by the New Jersey Law Against Discrimination or New York City's Human Rights Law has been introduced in both houses of Congress and is currently in committee.
Take-Away for Employers:
Although the PWFAs does not offer an exhaustive list of pregnancy-related conditions eligible for accommodation, the courts will likely view such conditions quite broadly. Employers should be mindful that any physical condition directly related to pregnancy could potentially trigger an obligation to provide a reasonable accommodation.
Employers in the City of New York and the State of New Jersey should review their current policies in light of these legal developments, and ensure that human resources personnel and supervisors are aware and properly trained to deal with the new law and its effects.