United States: NYC Issues Guidance Providing Expansive Rights To Pregnant Individuals And New Mothers In The Workplace

On May 6, 2016, the New York City Commission on Human Rights announced enforcement guidance on the New York City Pregnant Workers Fairness Act to help pregnant individuals and new mothers better understand their rights in the workplace and to clarify employers' legal obligations to such individuals, particularly with respect to the accommodations that must be provided. The Pregnant Workers Fairness Act, which went into effect in 2014 and was codified in the New York City Human Rights Law ("NYCHRL"), prohibits discrimination based on, and mandates reasonable accommodations for, pregnancy, childbirth and related medical conditions, without necessitating that the employee's limitation qualifies as a legally protected disability. The guidance notes that because of the time-sensitive nature and relatively short duration of the need for accommodation during pregnancy and postpartum, reasonable accommodations related to pregnancy, childbirth and related medical conditions are to be "liberally granted."  

The guidance is very detailed and provides many specific examples of prohibited employer conduct and the particular accommodations that may need to be provided to pregnant employees and new mothers. For the full text of the guidance, see http://www1.nyc.gov/site/cchr/law/legal-guidances.page. Summarized below are the key provisions of the guidance.

Expanded Definitions Under the Guidance

  • Pregnancy is defined as "being pregnant and symptoms of pregnancy, including, without limitation, nausea, morning sickness, dehydration, increased appetite, swelling of extremities, and increased body temperature." 
  • A "related medical condition" is defined as "the state of seeking to become pregnant; any medical condition that is related to or caused by pregnancy or childbirth, including, but not limited to, infertility, gestational diabetes, pregnancy induced hypertension, preeclampsia, post-partum depression, miscarriage, lactation; and recovery from childbirth, miscarriage, and termination of pregnancy."

Expanded Causes of Action for Pregnancy Discrimination Under the NYCHRL

The guidance sets forth five potential causes of action that may be asserted for pregnancy discrimination under the NYCHRL. Although the causes of action outlined in the guidance are not new, the Commission has expanded the bases on which a violation may be found under the NYCHRL.

  1. Disparate Treatment
  • Disparate treatment may be demonstrated by a showing that an individual has been treated "less well" than others because of her pregnancy or perceived pregnancy. 
  • Examples of disparate treatment are not allowing a worker to continue to accrue vacation and sick time while on maternity leave despite allowing others on temporary disability leave to accrue such time, repeatedly joking about a pregnant worker's weight gain, and maintaining policies that single out pregnant individuals. 
  • The guidance specifically prohibits employer conduct based on stereotypes or assumptions about pregnant employees, such as not offering a promotion to a pregnant worker because of the perception she may not return to work after giving birth or passing over a pregnant employee for a new project.
  1. Failure to Provide Reasonable Accommodations
  • Employees are entitled to an accommodation based on pregnancy, childbirth or a related medical condition, even if the medical condition does not amount to a disability and even if other nonpregnant employees are not accommodated, unless either the accommodation will pose an undue hardship on the employer or an employee is nonetheless unable to satisfy the essential requisites of her position.

Potential Types of Accommodations to Be Provided

  • The types of accommodations that may need to be provided to pregnant employees include (a) minor changes to work schedules, (b) temporary shift reassignments, (c) additional water, bathroom, rest or snack breaks, (d) adjustments to uniform requirements or dress codes, and (e) allowing an individual to eat at her workstation. The guidance states that such modifications will rarely pose an undue hardship on an employer. 
  • In addition, a schedule modification, job restructuring or reassignment to a vacant position may qualify as a reasonable accommodation, including, for example, (a) adjustment to start or end time, (b) reduced or modified work schedule, (c) desk duty or light duty, and (d) transfer to an alternative position when it is not possible for the employee to be accommodated so as to remain in her current position. When the employee cannot be accommodated in her current position and no alternative positions are available, an employee may be offered an unpaid leave of absence.  
  • Leave requests to recover from childbirth must be granted absent an undue hardship, and employers must reinstate employees returning from such leave to their original job or an equivalent position. 
  • New mothers who are breast-feeding are entitled to time to express breast milk (with no limit on the amount of time provided absent an undue hardship to the employer) and access to a clean and private area, other than a bathroom, that is "conveniently located and reasonably near the employee's workstation" and a refrigerator to store breast milk. Employees must also be permitted to "express milk at their usual work station ... so long as it does not create an undue hardship for the employer, regardless of whether a coworker, client, or customer expresses discomfort." 
  • Employees who are undergoing fertility treatment or who have had an abortion or miscarriage are also entitled to reasonable accommodations such as light duty, a more flexible schedule to attend related appointments or unpaid time to recover from any procedures.                            

Cooperative Dialogue

  • An employer is required to initiate and engage in good faith in a "cooperative dialogue" with an employee when the employer is on notice that the employee may need an accommodation due to pregnancy, a related medical condition or childbirth.  
  • In determining whether an employer engaged in a good faith cooperative dialogue with an employee, the Commission will consider (a) whether the employer has a written policy regarding requests for accommodation, (b) whether the employer's response to the request was timely, considering the urgency of the request, (c) whether the employer attempted to explore the existence and feasibility of various accommodations, including alternative positions, and (d) whether the employer attempted to obstruct or delay the cooperative dialogue or to intimidate or deter the employee from requesting the accommodation. 
  • An employer need not provide the specific accommodation sought by the employee so long as the employer proposes reasonable alternatives that meet the specific needs of the employee or that specifically address the limitation at issue.  
  • An employer must also formally conclude the cooperative dialogue upon a determination either that a reasonable accommodation will be provided, there is no accommodation available that will not cause an undue hardship to the employer or no accommodation will allow the employee to perform the essential requisites of the job. An employer must promptly notify the employee in writing of the determination.  
  • Employers may request medical documentation in connection with the cooperative dialogue only (a) where the employee is requesting time away from work other than for the standard six-to-eight-week recovery period after childbirth and the employer requests verification from other employees requesting leave-related accommodations for other reasons, and (b) if the accommodation request entails working from home on an intermittent or longer-term basis.  
  • In light of the potential changes in an employee's condition, the employer may need to engage in the cooperative dialogue multiple times during the course of an employee's pregnancy.           
  • An employer's failure to engage in a cooperative dialogue may constitute a violation of the NYCHRL, as a failure to accommodate. 

Employer Defenses

  • In order to deny an accommodation, an employer must prove, by a preponderance of evidence, the existence of an undue hardship or that the employee's inability to satisfy the essential requisites of the job.
  1. Failure to Post or Provide Notice Regarding Pregnancy Protections
  • Employers are required under the NYCHRL to provide all employees with written notice of their right to be free from discrimination in relation to pregnancy, childbirth and related medical conditions. This obligation may be satisfied by using the Commission's Pregnancy and Employment Rights poster.
  1. Disparate Impact
  • Policies or practices that have a disparate impact on individuals who are pregnant or perceived to be pregnant may violate the NYCHRL unless the employer can show that the policy or practice bears "a significant relationship to a significant business objective of the covered entity or does not contribute to the disparate impact." 
  • For example, according to the Commission, a policy permitting light-duty assignments only for employees injured on the job would likely have a disparate impact on pregnant workers.
  1. Retaliation
  • Retaliation against an employee who requests an accommodation or who participates in the cooperative dialogue is unlawful.

Takeaways for Employers and Best Practices

The Pregnant Workers Fairness Act and the recently announced enforcement guidance represent a significant expansion of rights for pregnant workers and new mothers employed in New York City. The Commission suggests the following best practices for employers to ensure their compliance with the law. First, employers should develop written policies to provide information to employees on how accommodations for pregnancy, childbirth, or related medical conditions will be handled and explaining the cooperative dialogue process. Second, when an employee notifies the employer of a pregnancy, the employee should be given a copy of the policy and reminded of the availability of accommodations. Third, employers should maintain detailed logs of their efforts to initiate, engage in and conclude the cooperative dialogue with each employee. Fourth, employers should be sure to maintain the confidentiality of communications surrounding an employee's pregnancy, childbirth, or related medical condition and requests for accommodation. 

In addition, employers must ensure managers understand that special protections are afforded to pregnant workers and new mothers under city law and know to bring any related issues to the attention of Human Resources or another appropriate representative. Employers must also update their policies and practices to ensure compliance with the expanded protections afforded to pregnant employees and new mothers employed in New York City.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.