Summary

In January 2014, New Jersey continued its recent trend of legislative actions addressing women’s health and safety issues by enacting New Jersey’s Pregnant Workers Fairness Act (“Pregnancy Act”). This act expressly bans pregnancy discrimination and imposes new workplace accommodation requirements on employers. The Pregnancy Act is effective immediately and applies to all employers, except federal employers, in New Jersey (regardless of size).

Background

The Pregnancy Act adds pregnancy as a protected characteristic under the New Jersey Law Against Discrimination (NJLAD), prohibits workplace discrimination against women because of pregnancy, childbirth and childbirth recovery, and expressly prevents employers from treating pregnant women less favorably than others who are not pregnant but have similar work abilities. Specifically, the law requires employers to provide workplace accommodations to employees who are “affected by pregnancy,” regardless of whether those employees are “disabled,” within the definition of the ADA or NJLAD, and regardless of whether the requested accommodations are necessary for the employees to perform the essential functions of their jobs. The term “affected by pregnancy” is not defined and it remains to be seen how broadly it will be interpreted. The new law also bans pregnancy discrimination in other areas that NJLAD covers, including housing, public accommodations and finance.

Under the law, employers have to make reasonable accommodations for pregnant women when they request it based on the advice of their doctors. Thus, by its terms, the new law requires that such requests be accompanied by some type of physician’s note. The Pregnancy Act provides a list of potential accommodations, including bathroom breaks, modified work schedules, assistance with manual labor and temporary transfers to less strenuous or hazardous work. This list is by no means exhaustive. Employers are not required to make these accommodations if doing so would bring about an undue hardship and the Pregnancy Act specifically enumerates factors that should be considered in an undue hardship analysis.

With regard to litigation, the Pregnancy Act creates a private right of action for pregnancy discrimination against the employer. An employer may be liable if it treats, for any employment-related purpose, “a women employee that the employer knows, or should know, is affected by pregnancy in a manner less favorable” than a “similarly situated non-pregnant employee.” Importantly, the plaintiff’s burden of proof on a failure to accommodate claim under the Pregnancy Act will be less than the burden of proof for an ADA or NJLAD disability claim, because she is not required to demonstrate that she is “disabled” or that the accommodation would have allowed her to perform the essential functions of her job. Under the Pregnancy Act, the plaintiff must demonstrate that she has a need for an accommodation on the advice of her physician, that the requested accommodation is “reasonable,” that she was able to perform all of the essential functions of her job, with or without the accommodation, that the employer was aware of the request for an accommodation and that the employer denied her request. Once the plaintiff has made this showing, the employer is then required to demonstrate an undue hardship.

New Jersey’s passage of the Pregnancy Act follows its passage of other legislation that addresses women’s health and safety issues:

• The New Jersey Security and Financial Empowerment Act (“NJ SAFE Act”) – which permits employees to take a protected, unpaid leave of absence to address an instance of domestic violence or sexual assault;
• The August 2013 NJLAD amendment - which prohibits retaliation against an employee for requesting from another employee or former employee information regarding job titles or compensation where the purpose of the inquiry is to assist in an investigation into discriminatory treatment; and
• The 2014 amendment to the New Jersey Equal Pay Act – which requires that employers inform employees of their “right to be free from gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment” and imposes specific notice and posting requirements.

What It Means for Employers

Enactment of the Pregnancy Act, as well as the other laws briefly referenced above, should spur employers to revisit or revise employee handbooks and policies and retrain human resources personnel on these new legal developments. While not specifically addressed in the Pregnancy Act, the obligations imposed by it reinforce the need for employers to actively and effectively engage in the “interactive process” with employees requesting accommodations. Thus, employers should consider training managers and human resources personnel on the need to engage in the interactive process with a pregnant employee “affected by pregnancy,” who is requesting an accommodation, regardless of whether the employee is disabled.