New Jersey Governor Chris Christie signed into law last week a bill that specifically adds pregnancy to the New Jersey Law Against Discrimination (NJ LAD) and requires employers to offer reasonable accommodations to pregnant employees who request accommodation. The new law, which was passed unanimously by the state Senate and with just one dissenting vote in the state Assembly, makes several major changes to existing law. Employers should be mindful of this new law because it strengthens the already tough NJ LAD and goes farther than the federal Pregnancy Discrimination Act.
The new law defines pregnancy as “pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth.” This definition is significant because it is likely broad enough to cover a range of conditions and ailments and specifically includes recovery from childbirth as being within its parameters. The new law prohibits an employer from treating any female employee that the employer knows or should know is pregnant less favorably from other non-pregnant employees who are similarly situated in their ability or inability to work.
The new law also imposes a requirement that employers offer pregnant employees a reasonable accommodation unless it would cause the employer an undue hardship. The law includes examples of some reasonable accommodations: “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work.” Accommodations are required by the new law if three conditions are met: the accommodations are for needs related to the pregnancy, the employee requests the accommodations based upon the advice of her physician, and the accommodations will not cause an undue hardship for the employer. When accommodations or leave are provided under this section of the new law, they cannot be provided less favorably when compared to accommodations or leave given to non-pregnant employees who are similar in their abilities or inabilities to work.
Employers do maintain some protections within the new law. First, the undue hardship exemption will relieve employers of their obligation to provide accommodations for pregnant employees in some circumstances. Second, the law specifically declares that it “shall not be construed as otherwise increasing or decreasing” any existing statutory rights to paid or unpaid leave in connection with pregnancy. Earlier versions of the bill failed to include either of these protections for employers, but the protections were added during the committee process and included in the final version signed into law.
Regarding the undue hardship exception, the law lists five factors to determine whether an accommodation would pose an “undue hardship on the operation of an employer’s business”:
- “the overall size of the employer’s business with respect to the number of employees;
- “number and type of facilities and size of budget;
- “the type of the employer’s operations, including the composition and structure of the employer’s workforce;
- “the nature and cost of the accommodations needed, taking into consideration the availability of tax credits, tax deductions, and outside funding;
- “and the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.”
Again, employers should note that the new law goes farther than the federal Pregnancy Discrimination Act (PDA). The PDA prohibits employers from refusing to hire pregnant applicants due to their pregnancy or from firing pregnant employees because of their pregnancy, but the PDA only requires employers to provide the same treatment for pregnant employees who become unable to work as it does for other temporarily disabled employees. The PDA still applies to New Jersey employers, but the new law now requires reasonable accommodations for pregnant employees (if those employees meet the requirements and there is no undue hardship).
With the enactment of these new protections for pregnant employees, New Jersey joins a number of other states — including Texas, California, Illinois and Connecticut — that have recently adopted laws addressing pregnancy discrimination. With the new law taking effect immediately, employers in New Jersey should review their leave and accommodation policies and ensure that they reflect the new requirements.