Employers are required now to make reasonable accommodations available for female employees affected by pregnancy … when such employees request an accommodation based on the advice of their physicians – even if the employee's pregnancy is "normal."
On January 21, 2014, New Jersey Governor Chris Christie signed into law an amendment to the New Jersey Law Against Discrimination (LAD), expanding state law employment protections for pregnant women. The amendment, which is effective immediately, is designed to combat discrimination in New Jersey workplaces against pregnant women, whom the State Legislature found are vulnerable to discrimination.
While New Jersey courts have interpreted the LAD to prohibit employers from discriminating against employees because of pregnancy based on gender and pregnancy-related disabilities, the LAD now expressly includes pregnancy in its list of protected attributes. The LAD specifically provides that it is unlawful for an employer to discriminate against an employee because of pregnancy with respect to terms and conditions of employment, refuse to hire an applicant because of pregnancy or discharge an employee because of pregnancy. Further, the LAD, as amended, prohibits employers from treating a female employee whom the employer knows, or should know, is affected by pregnancy in a manner less favorable than the employer treats non-pregnant employees with similar work abilities or inabilities.
Employers are required now to make reasonable accommodations available for female employees affected by pregnancy (which is defined to include pregnancy, childbirth or medical conditions related to pregnancy or childbirth) when such employees request an accommodation based on the advice of their physicians – even if the employee's pregnancy is "normal." Employers did not have an obligation to accommodate employees with normal, healthy pregnancies prior to this amendment. The LAD lists the following accommodations that may be needed by a pregnant employee:
- 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.
Employers are not required to provide accommodations if doing so would be an undue hardship on the business operations of the employer. The LAD amendment identifies a number of factors to be considered in determining what constitutes an undue hardship. Those factors include, among others, the overall size of the employer's business with respect to the number of employees, the number and type of facilities and the size of budget; the type of the employer's operations, including the composition and structure of the workforce; the nature and cost of the accommodation needed; 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.
Finally, the LAD's anti-retaliation provision has been expanded, making it unlawful for an employer to penalize a pregnant employee who requests, or receives and uses, an accommodation.
What This Means for New Jersey Employers
Though discriminating against applicants or employees on the basis of pregnancy has been unlawful under federal and state law prior to this recent LAD amendment, employers in New Jersey are now required to consider requests for accommodations from pregnant employees and engage in the interactive process with such employees. Since pregnancy is now listed as its own protected class in the LAD, pregnant women will no longer have to argue discrimination by way of gender or disability in order to state a claim under the LAD. Further, employers are now obligated to reasonably accommodate pregnant employees whose pregnancies are "normal," whereas before this amendment only employees disabled by their pregnancies were due reasonable accommodation under the LAD. New Jersey employers should review their equal employment opportunity, reasonable accommodation and leave policies, as well as related training materials, to ensure pregnancy is listed as a protected class (if it is not included already).