New York Employment Attorney Blog
Recently, both the federal government and New York State enacted new laws designed to bolster workplace protections for pregnant/breastfeeding workers. This means the law against pregnancy discrimination is more powerful than ever so if you’ve encountered this type of mistreatment, you definitely owe it to yourself to contact a knowledgeable New York pregnancy discrimination lawyer and discuss your situation.
These new laws reflect the reality that, although the federal government enacted the Pregnancy Discrimination Act in 1978 and pregnancy discrimination has been a violation of the New York State Human Rights Law and the New York City Human Rights Law for many years, workplace discrimination against pregnant workers and workers who are breastfeeding stubbornly remains a problem.
One new federal law — the Pregnant Workers Fairness Act — goes into effect later this month, on June 27. As with many federal employment laws, lawmakers limited the PWFA’s reach to “covered” employers and “qualified” employees. In the context of the PWFA, “covered” employers includes both public and private entities with 15 or more employees, and “qualified” means workers who can perform the essential functions of the job with or without an accommodation.
The Law Requires a Good-Faith ‘Interactive Process’
The statute requires covered employers to provide “reasonable accommodations” to any known impairments a worker experiences as a result of her pregnancy or pregnancy-related condition. These accommodations can take a variety of forms. They might include moving a worker’s workstation closer to the bathroom and/or giving her more break time if her pregnancy is causing her to urinate exceptionally often, giving her a new parking space closer to the office if her pregnancy has made walking difficult, or providing her with a new uniform or new safety gear that better fits her pregnant body.
People knowledgeable about the laws and rules of discrimination law may recognize the phrase “reasonable accommodations” as one common in disability discrimination law. Similar to disability discrimination law, the PWFA forbids employers from unilaterally establishing an accommodation and demanding that the employee accept. As the U.S. Equal Employment Opportunity Commission explained it, employers cannot “require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer.” This concept is known as the good-faith “interactive process,” where the employer and employee must collaborate, rather than the process being a one-way street.
The PWFA also restricts a practice that many ring familiar to many working mothers — being forced onto leave from your job. Under the PWFA, the employer cannot force a pregnant worker onto leave so long as reasonable accommodations exist that would allow the employee to keep working.
The PWFA also prohibits various practices that are similarly banned under other anti-discrimination laws. These include denying employment to a qualified candidate simply because she would need a pregnancy accommodation, retaliating against an employee for standing up against pregnancy discrimination (targeting either herself or other workers,) and interfering with a worker’s efforts to exercise her rights under the PWFA.
As with other discrimination laws, employers do have a narrow “out.” Employers need not provide reasonable accommodations if they can demonstrate that accommodating a pregnant worker would impose an “undue hardship” on the employer. According to the EEOC, undue hardship means “significant difficulty or expense.” In a worker’s pregnancy discrimination action, the employer bears the burden of proving an undue hardship.
The PUMP Act Ensures Safe, Private Spaces for Expressing Milk
Another enhancement is the Providing Urgent Maternal Protections for Nursing Mothers Act, or PUMP Act, which went into effect late last December. The Federal government originally enacted protections for nursing mothers in 2010 but, because those protections were codified as an amendment to the Fair Labor Standards Act, they didn’t apply to any nursing mothers who was an “exempt” employee under the FLSA (e.g., salaried workers and several other types of employees.)
The PUMP Act closed that loophole.
The PUMP Act also says that, while employers are not required to give nursing mothers paid nursing breaks, those employers also cannot forbid nursing employees from using the paid breaks the employer provides to all its employees for nursing.
The law also lays out some minimum standards for what does — and what does not — constitute an appropriate space for pumping. A compliant pumping area must be “shielded from view and free from, intrusion from coworkers and the public,” and cannot be a bathroom or toilet stall.
The U.S. Department of Labor has also instructed employers that the designated space must be functional for the task of pumping. That means it must include a seat and a flat surface on which to place the worker’s pump.
New York Also Bolstered Its Requirements Regarding Spaces for Pumping
The State of New York also took affirmative steps to protect nursing workers recently. Earlier this month, an amendment to Section 206-c of the New York Labor Law took effect. This amendment expands employers’ obligations, demanding that they allow “reasonable break time” each time a nursing worker has a “reasonable need to express breastmilk,” and allow nursing workers to continue to access these pumping breaks for as much as three years after they give birth.
The amendment to Section 206-c also addresses the issue of appropriate pumping locations. The new law says that in addition to being shielded from view and free from intrusion (as the PWFA requires,) a designation space for expressing milk must also be “well lit” and “in close proximity to the work area.”
The amendment to Section 206-c lays out a fairly detailed list of things that a pumping space must be or include. The law says that the space “shall provide, at minimum, a chair, a working surface, nearby access to clean running water and, if the workplace is supplied with electricity, an electrical outlet.” Just like with the federal statute, the state law also bans using bathrooms or toilet stalls as designated pumping spaces.
On top of those things, the law clarifies how employers must respond if they wish to use a room as both the designated pumping space and for other purposes. In that situation, the law demands that the room be available to pumping workers whenever needed and not be used for any other purpose for the duration of time the pumping worker needs to express milk.
Unlike the federal law, the amended state law covers all employers, regardless of size.
Additionally, the amendment to Section 206-c makes it especially difficult for New York employers to escape their obligations to nursing workers via the “undue hardship” exception. The amendment narrowed that exception, stating that if providing a space that meets all the demands of Section 206-c(2)(a) and 206-c(2)(b) would be impractical due to the hardship it would impose, that fact does give employers a “free pass” to do nothing. Rather, they still must “make reasonable efforts to provide a room or other location, other than a restroom or toilet stall, that is in close proximity to the work area where an employee can express breast milk in privacy.”
It’s important to note that the federal requirements under the PWFA are a “floor” obligation. If a state or local government imposes demands above what the PWFA requires, employers in those locations must meet those higher standards.
Pregnancy discrimination on the job can take many different forms. If you think your employer (or prospective employer) has taken adverse action against you because of your pregnancy or condition related to pregnancy (including breastfeeding,) don’t wait to get in touch with the skilled New York pregnancy discrimination attorneys at Phillips & Associates. We understand that facing this challenge alone can seem overwhelming, so contact us online or at (833) 529-3476 to set up a free and confidential consultation and put the power of our team on your side.