Pregnant Employees To Get Expanded Workplace Accommodations Under LAD and EEOC Guidance

In January 2014, Governor Christie signed the Pregnant Worker’s Fairness Act (PWFA), amending the New Jersey Law Against Discrimination (LAD) to expressly prohibit workplace discrimination on the basis of pregnancy. On the federal side, the United States Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance on Pregnancy Discrimination and Related Issues (“the Guidance”) on July 14, 2014, that reiterated i) the federal Pregnancy Discrimination Acts’ prohibition against treating pregnant employees less favorably than non-pregnant individuals with respect to the terms and conditions of employment; and ii) the Americans With Disabilities Act’s mandate that employers provide reasonable accommodation to women with pregnancy-related disabilities. While aspects of these pronouncements simply confirm the right to non-discrimination and reasonable workplace accommodations for pregnancy-related disabilities, there can be no doubt that these developments break new ground by extending the reasonable accommodation obligation to employee experiencing a normal pregnancy who is “affected” by her condition.

THE PRIOR LEGAL LANDSCAPE: Prior to the PWFA and the EEOC Guidance, pregnant employees in the workplace were accorded protections under the following laws:

• Pregnancy Discrimination Act (“PDA”): Title VII amended to add pregnancy as form of gender discrimination. Employers of 15 or more employees are required to treat pregnant workers the same as non-pregnant workers who are similar in their abilities to work with respect to all terms and conditions of employment.
• Americans With Disabilities Act (“ADA”): Employers obligated to provide reasonable workplace accommodations, including workplace modifications and leaves of absence, to employees with disabilities, including pregnancy-related disabilities.
• Family and Medical Leave Act/New Jersey Family Leave Act: Employers of 50 or more employees required to provide 12 weeks of job-protected unpaid leave for i) the birth or care of a newborn child, or ii) the employee’s own serious health condition, including incapacity due to pregnancy.
• New Jersey Law Against Discrimination (“LAD”): The LAD’s prohibition against gender-based discrimination construed to include pregnancy discrimination, and the law’s duty to provide reasonable accommodations to disabled employees deemed to include disabilities caused by pregnancy.

In the years since the passage of these laws, most employers now understand that pregnant employees cannot be treated less favorably than non-pregnant employees with respect to hiring, firing or other terms or conditions of employment. In addition, most employers understand that a pregnant employee deemed disabled by her physician is entitled to reasonable accommodations, such as reduced hours or a leave of absence, during the period of disability. However, because the EEOC has long recognized that an employee’s pregnancy status is not, standing alone, a disabling condition, these laws did not obligate an employer to provide any accommodation to pregnant workers experiencing the effects of a normal pregnancy, such as morning sickness, lifting difficulties, or the need for increased bathroom and break periods. For example, an employer could discipline a pregnant employee for excessive lateness due to morning sickness, so long as non-pregnant workers with similar records of lateness would also be subject to discipline.

THE GAME CHANGE BROUGHT ON BY THE PWFA

According to PWFA’s declaration from the State Legislature, “pregnant women are vulnerable to discrimination in the workplace in New Jersey, as indicated in reports that women who request an accommodation that will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth, are being removed from their positions, placed on unpaid leave, or fired.”

Reasonable Accommodation of the “Affects” of Pregnancy: To combat this form of discrimination, the PWFA mandates that employers provide pregnant employees with reasonable accommodations in the workplace, such as:

• Bathroom breaks
• Breaks for increased water intake
• Periodic rest
• Assistance with manual labor
• Job restructuring
• Modified work schedules
• Temporary transfer to less strenuous or hazardous work

Pregnant employees must request accommodation and present a note from a physician to substantiate the need for the accommodation.

Prior to the PWFA, reasonable accommodation was only available to women experiencing complications from pregnancy who were deemed disabled or incapacitated by the pregnancy – no state or federal law required employers to reasonably accommodate those employees who were merely “affected” by pregnancy. Now, reasonable workplace accommodations are available to non-disabled women experiencing normal pregnancies, so long the accommodation would allow them to maintain a healthy pregnancy, protections that go far beyond pre-PWFA requirements.

Notably absent from the list of accommodations is a leave of absence. Moreover, the PWFA expressly states that it “shall not be construed as otherwise increasing or decreasing any employee’s rights under law to paid or unpaid leave in connection with pregnancy.” Thus, while consideration of a leave of absence is a recognized form of reasonable accommodation for a disability, which of course would include a pregnancy-related disability, the PWFA does not appear to make a leave of absence a form of reasonable accommodation for women experiencing normal pregnancies.

THE GAME CHANGE BROUGHT ON BY THE EEOC’S GUIDANCE

Although the EEOC’s Guidance does not have the force of law, the lengthy 60-page publication provides valuable guidance on how the Commission intends to broadly construe the ADA and PDA to afford maximum protections to employees affected by pregnancy.

Prohibited Practices: The Guidance reiterates that discrimination on the basis of pregnancy is prohibited by the PDA, and clarifies that the discrimination prohibitions extend not only to current pregnancies, but also to discrimination on the basis of a woman’s prior pregnancy, potential to become pregnant, declared intention to become pregnant, infertility treatments, use of contraception or from having or contemplating an abortion.

The Guidance also highlights common practices that run afoul of the PDA, such as:

• Acting upon stereotypes about a pregnant employee’s job capabilities or commitment to the job, such as concerns of frequent absences during the pregnancy or that the employee will not return to duty after the child is born.
• Excluding pregnant or fertile women from certain jobs based upon concerns for the safety of the employee or unborn child. Such exclusions will only be justified in rare circumstances.
• Imposing work modifications or requiring leave of absence for pregnant employees, even if these actions are undertaken out of concern for the health and safety of the expecting mother or her unborn child. If the pregnant employee is able and willing to undertake her job duties, she must be permitted to do so on the same terms and conditions as other employees.
• Failing to provide the same benefits for pregnancy-related medical conditions as those accorded to employees with other medical conditions.
• Discriminating against an employee based upon her need to take lactation breaks. The Guidance further notes that lactation is a pregnancy-related condition protected by the PDA.

Light Duty and Other Accommodations to Pregnant Employees: The most controversial aspect of the Guidance cautions that an employer violates the PDA by refusing workplace accommodations to an employee temporarily unable to perform her job duties due to pregnancy if the employer provides those accommodations to non-pregnant employees who are similar in their ability or inability to work. Thus, if an employer has a policy limiting light duty assignments to those employees injured on the job or with ADA-covered disabilities, the Guidance suggests that the PDA mandates that the same light-duty opportunities be provided to pregnant employees. Despite the fact that pregnancy is not a disability under the ADA, to the extent an employee’s normal pregnancy limits her ability to perform certain job duties, the employer must provide the same reasonable accommodations provided to other employees with similar limitations.

Critics maintain that this and other aspects of the Guidance impose requirements upon employers that are not supported by the language of the PDA and the ADA. The viability of these expanded mandates will be the focal point of a case up for review by the United States Supreme Court in the next term. In , the Court will decide whether the PDA requires an employer’s policy limiting workplace modifications – in that case lifting restrictions – to disabled employees injured on the job must permit the pregnant UPS driver with a healthy, normal pregnancy with the same lifting restrictions to allow her to continue to work during her pregnancy.

PUTTING IT ALL TOGETHER

Employers should administer requests for accommodations from employees affected by pregnancy in the same manner as requests from employees with impairments covered by the ADA.

The Undue Hardship Defense: Consistent with other forms of reasonable accommodation under the LAD and ADA, the employer need not provide any accommodation if the requested accommodation would impose an “undue hardship” on the employer’s operations. The factors to be considered in making that determination include:

• The overall size of the business with respect to the number of employees, number and type of facilities, and size of budget;
• The type of operations;
• The nature and cost of the accommodation;
• The extent to which the accommodation would require waiver of an essential job duty.

The Interactive Process: In considering any request for reasonable accommodation for women affected by pregnancy, the employer should engage in the same “interactive process” with the employee as required when considering an accommodation of a disability under the LAD and ADA. In so doing, the employer must engage in a dialogue with the employee to identify those accommodations that the employee and her physician have identified as necessary to alleviate the adverse effects of the pregnancy and facilitate a healthy pregnancy.

No Retaliation: Consistent with the LAD and ADA, both the PWFA and the PDA prohibit any retaliation against those pregnant employees who invoke their rights under these laws.

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