Posted: February 18th, 2022
Employer Obligation to Reasonably Accommodate Pregnancy
This law mandates that if an employee would be able to perform her job’s essential functions after being provided with a reasonable accommodation, then an employer may not deny an accommodation to an employee based on her pregnancy, childbirth, or a related medical condition known or that should be known to the employer. However, if the employee cannot perform her job’s essential functions even if such a reasonable accommodation is provided, then it becomes an affirmative defense to the discriminatory practice. As provided for under the NYC Administrative Code § 8-107, subd. 22 of the NYCHRL, pregnancy has been recognized as a per se disability by the City Commission on Human Rights before January 30, 2014. Feel free to read our blog titled “Does Being Pregnant In Of Itself Qualify As A Disability” and accessible at https://milettilaw.com/blog/f/does-being-pregnant-in-of-itself-qualify-as-a-disability to under the circumstances under which pregnancy qualifies as a disability. This is because pregnancy does not qualify as a disability in itself.
Nonetheless, effective October 12, 2018, any employer who fails or refuses to engage, within a reasonable time, in a cooperative dialogue with an employee who the employer has noticed may need a reasonable accommodation or who has requested such an accommodation for her pregnancy, childbirth, or a related medical condition. As such, it is not until after the employer has attempted to engage in or the parties have engaged in cooperative dialogue that it can be determined that no reasonable accommodation exists. Following the end of the cooperative dialogue, as provided for under the NYC Administrative Code § 8-107, subd. 28(d), (e) of the NYCHRL, an employer must provide the employee who needed or requested the accommodation with a written final determination in which any accommodation that is denied or granted by the employer is identified.
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