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ALERT: Notice to Philadelphia Employers

April 10, 2014

All employers who have employees in Philadelphia are required to post a “pregnancy discrimination” notice from the Philadelphia Commission on Human Relations by April 20, 2014.  The notice explains employees’ rights under a recent amendment to Philadelphia’s Fair Practices Ordinance.  The amendment imposes a duty on employers to provide reasonable accommodations to employees because of pregnancy, childbirth or related medical conditions if the employee requests such an accommodation and the requested accommodation would not pose an undue hardship on the employer. This is similar to an employer’s duty to provide a reasonable accommodation under the Americans with Disabilities Act. Under this new law, however, medical documentation is not required; all that is required is the employee’s request.
Reasonable accommodations under the new law may include, but will not be 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.  
Employers will have the burden of proving it would be an undue hardship to accommodate an employee’s request.  The factors that will determine whether there is an undue hardship include: the nature and cost of the accommodations; 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 or facilities, the effect on expenses and resources, or the impact otherwise of such accommodations upon the operation of the employer; 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 the type of operation or operations of the employer, including the composition, structure, and functions of the workforce, and the geographic separateness or administrative or fiscal relationship of the facility or facilities in question to the employer.
In addition to the undue burden defense, employers can also assert as an affirmative defense that the employee could not, with reasonable accommodations, satisfy the requisites of the job.  If an employer engages in an unlawful act under this amendment, the aggrieved employee will be entitled to injunctive or other equitable relief, compensatory damages, punitive damages, and reasonable attorneys’ fees.
The Philadelphia Commission on Human Relations will be enforcing this law.  However, because the law expands beyond the protections of the Pennsylvania Human Relations Act (the state’s anti-discrimination statute), it remains to be seen whether it will be challenged in court on jurisdictional grounds.  In the meantime, in addition to posting the required notice, employers would be wise to review and revise their leave policies and make sure all managers understand their obligations when a request for accommodation is made. 

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