The Pregnancy Accommodation Train Has Left the Station and Arrived in Philadelphia

Following a trend previously reported in our January 31, 2014 alert, the City of Philadelphia has become the latest jurisdiction to require covered employers to reasonably accommodate pregnant workers.

On January 20, 2014, Mayor Michael Nutter (D) signed into law an amendment to the Philadelphia Code entitled “Fair Practices Ordinance: Protections Against Unlawful Discrimination.” The law makes it an unlawful discriminatory employment practice for an employer “to fail to provide reasonable accommodations to an employee for needs related to pregnancy, childbirth, or a related medical condition, provided (i) the employee requests such accommodations and (ii) such accommodations will not cause an undue hardship to the employer.”

A “reasonable accommodation” means an accommodation “that can be made by an employer in the workplace that will allow the employee to perform the essential functions of the job.” According to the amendment, reasonable accommodations include, but are not limited to, “restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.”

Like other laws of this kind, the employer has the burden of proving undue hardship. Factors to be considered in making a determination of undue hardship include, but are not limited to, the following:

1. The nature and cost of the accommodations;

2. The overall financial resources of the employer’s facility or facilities involved in the provision of the reasonable accommodations, including the number of persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodations upon the operation of the employer;

3. The overall financial resources of the employer, including the size of the employer with respect to the number of its employees and the number, type, and location of its facilities; and

4. The type of operation or operations of the employer, including the composition, structure, and functions of the workforce, the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer.

The law further states that in any case where the need for a reasonable accommodation is placed in issue, “it shall be an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodations, satisfy the requisites of the job.”

The Philadelphia legislation comes amidst a flurry of activity in the area of pregnancy discrimination and accommodation. In addition to developments previously reported, on February 10, 2014, the West Virginia House of Delegates passed similar reasonable accommodation for pregnancy legislation that, if enacted, would apply statewide.

For more information about this or other pregnancy accommodation laws, please contact the authors or any other members of the Arent Fox Labor & Employment group.