DISCLAIMER: This post is intended only as general information about pregnancy discrimination. It is not legal advice, and reading it does not make us your attorneys. If you need specific legal advice, please contact an employment attorney in each of the jurisdictions where you have workers who could be deemed your employees.
Until last year, many workers faced significant challenges related to pregnancy accommodations. Unless there was a documented disability related to the pregnancy, employers did not typically provide reasonable accommodations. This forced many pregnant workers to:
- Risk their health and the health of their babies
- Take unpaid leave
- Lose jobs, income, and opportunities
The Pregnant Workers Fairness Act (PWFA) took effect on June 27, 2023 and ensures reasonable accommodations during:
- Pregnancy
- Childbirth
- Related medical conditions
The Equal Employment Opportunity Commission’s (EEOC) final regulation regarding the PWFA is effective June 18, 2024. Below are an overview of the Act and some tips to maintain compliance and fairness in your New York workplace.
Reasonable Accommodations
The PWFA applies to most employers with 15 or more employees–or workers that could be deemed employees. Don’t assume that labeling a worker an independent contractor will make you exempt from the law. Reasonable accommodations must be made to qualified employees or applicants with known limitations related to pregnancy, childbirth, or related medical conditions. Here are some possible accommodations you might need to make, unless you can prove they would cause undue hardship to the business:
- Longer or more flexible breaks
- Seating for tasks otherwise performed while standing
- Light duty work
- Time off for appointments or rest
- Temporary reassignment
- Remote work
Notice that these possible accommodations are relatively inexpensive and easy to implement, especially on a temporary basis. So, it might be difficult to prove undue hardship. It is often easier to make an accommodation after engaging in the interactive process. This is also an effective way to reinforce the concept of employment as a partnership toward mutually beneficial goals.
Interrelationship with Other Laws
Americans with Disabilities Act (ADA)
The ADA and the PWFA intersect in several ways. The ADA covers individuals with disabilities, including pregnancy-related impairments. The PWFA specifically addresses pregnancy, childbirth, and related conditions. It does not require an impairment within the ADA definition. A known limitation, such as morning sickness or frequent urination, will likely require an accommodation.
Title VII of the Civil Rights Act of 1964
Title VII prohibits discrimination based on sex, including pregnancy-related discrimination. The PWFA complements Title VII by providing specific protections for pregnant workers. Thus, violation of the PWFA is also a violation of Title VII. If there is a documented pregnancy-related impairment, there could also be a violation of the ADA.
Family Medical Leave Act (FMLA)
The FMLA provides unpaid, job-protected leave for certain family and medical reasons. In New York, employees also have Paid Family Leave (PFL) and Safe and Sick Leave Pay available before they take unpaid FMLA leave.
Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act
The PUMP Act broadens workplace protections for employees to express breast milk at work. As stated on the United States Department of Labor website “nursing employees have the right to reasonable break time and a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk while at work. This right is available for up to one year after the child’s birth.”
Health Information Portability and Accountability Act (HIPAA)
Although employers are not typically covered entities as defined by HIPAA, it’s always a best practice to maintain the confidentiality of an employee’s private health information (PHI). An employee might not be able to hide pregnancy at late stages. However, there could be other aspects of the pregnancy that open doors to various types of discrimination and misconduct. Anything that is unrelated to an employee’s ability to perform the essential functions of a job should be kept out of the workplace whenever possible.
New York State Human Rights Law (NYSHRL)
New York State has its own human rights law that protects pregnant workers and those who are breast feeding. You may not change an employee’s terms, conditions, and privileges of employment because of these pregnancy-related conditions. Are you following this carefully? If you treat employees differently because they are breastfeeding, you could be violating the PWFA, Title VII, and the PUMP Act under federal law, as well as the NYSHRL.
Recommendations for New York Employers
New York employers should take proactive steps to comply with the PWFA:
- Policy Review. Ensure employee policies alignment with the PWFA requirements. For those of you in New York City, this handy flyer can help.
- Training. Determine now whether managers and Human Resources representatives understand the interactive process and how to determine appropriate accommodations.
- Documentation. Review how requests, discussions, and decisions are documented to ensure they demonstrate compliance and fairness.
- Communication. Openly communicate with employees about their rights under the PWFA, and encourage a supportive workplace culture for pregnant employees.