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Here at Miletti Law®, we are the authoritative force in Employment and Labor Law. Therefore, we are committed to updating our series on employment & labor law with fresh, verifiable, and credible content. In that spirit, this blog is Part XVII of our series on New York State and City laws that apply to workplace harassment, discrimination, & retaliation. In Part XVI of this series, we provided you with an overview of the “Process of Requesting for Accommodation” pursuant to the NYCHRL & NYSHRL. As we move the discussion forward in this blog and Part XVII of the series, we are going to hammer on “Pregnancy-Related Protections provided under both the NYCHRL & NYSHRL.”

Pregnancy-Related Protections Provided under NYCHRL & NYSHRL

Employees and job applicants in New York are entitled to pregnancy-related protections pursuant to the NYC Administrative Code 8-101 et seq. of the NYCHRL & N.Y. Exec. Law § 290 et seq. of the NYSHRL. For the purposes of record, the information regarding pregnancy-based protections provided below was current as of May 15, 2021.

Concerning Pregnancy Disabilities & Discrimination

NYSHRL

As provided for under the N.Y. Exec. Law § 296(3)(a)of the NYSHRL, employers in New York are prohibited from discriminating against employees or job applicants based on pregnancy. Under the NYSHRL, pregnant employees must be treated with the same standard as employees with other medical or physical disabilities.

Employer Obligation to Reasonably Accommodate Pregnancy

NYCHRL

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. 22of 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 will be considered to have engaged in unlawful discriminatory practice. 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.

NYSHRL

In line with the provisions of the N.Y. Exec. Law § 292(21-e) of the NYSHRL, employers are obligated by the Women’s Equality Act, effective January 19, 2016, to provide employees who have pregnancy-related conditions with reasonable accommodation as long as no undue hardship would result from such an accommodation. However, the N.Y. Exec. Law § 292(21-f) of the NYSHRL provides that pregnancy-related conditions should be treated as temporary disabilities to necessitate the provision of a reasonable accommodation.

Employees who request accommodations under the NYSHRL must understand that employers are permitted by the N.Y. Exec. Law § 296(3)(c) to ask for any necessary documentation. Furthermore, the law permits employers to seek any medical information required to consider the accommodation or even verify the disability in question. As such, while the medical information provided must be kept confidential, the law also requires an employee’s cooperation in providing such medical information necessary to consider the accommodation or verify whether the said disability actually exists. Nonetheless, the N.Y. Exec. Law § 296(1)(g) provides that unless the employee is unable to perform, in a reasonable manner, the essential functions of her job due to the pregnancy, such a pregnancy may not take a leave of absence.

In Part XVIII of this series, we shall switch gears and provide you with an overview of “Religion-Related Protections,” as provided under the NYCHRL & NYSHRL and other relevant laws that apply to workplace harassment, discrimination, & retaliation in New York.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.