NEW JERSEY LAW AGAINST DISCRIMINATION
New Jersey employers have long been aware that New Jersey’s Law Against Discrimination (the LAD), which protects employees from unlawful discrimination by employers, labor organizations and employment agencies, contains protection for workers that in some respects exceeds the protection provided by Federal laws such as the Civil Rights Acts, the Age Discrimination in Employment Act and the Americans with Disabilities Act. The latest amendment to the LAD is the New Jersey Pregnant Worker’s Fairness Act (the PWFA). One thrust of the PWFA is to prohibit sex discrimination on the basis of pregnancy. This is ground already covered by the federal Pregnancy Discrimination Act (the “PDA”).However, the PWFA,, which applies to all New Jersey employers, requires more than mere non-discriminatory treatment; it requires that employers provide special accommodations to employees on the basis of pregnancy.
To some extent, the PWFA’s accommodation requirements are similar to those mandated by the LAD for disabled employees. In both cases, the employer must provide “reasonable accommodation.” With respect to both disability and pregnancy, what is reasonable depends on the type and size of the business, the cost of the accommodation, the employee’s job duties and the extent to which the accommodation would require waiver of some essential job requirement. However, there are major differences. To qualify for a disability accommodation, an employee must be disabled or perceived as such. The accommodation must be necessary for the employee to perform the essential functions of the job. Normal pregnancy is not considered a disability. A pregnant employee requesting accommodation would have to show that her condition went beyond normal pregnancy to a disabling medical condition.
In contrast, the PWFA requires provision of accommodation to female employees who are “affected pregnancy, childbirth or medical conditions related to pregnancy or childbirth, including recovery from childbirth.” There need not be a disability or additional medical condition. The employee can seek accommodation on the advice of her physician – it is unclear whether an employer may require a doctor’s note. Unlike the disability accommodation,it is not necessary that the accommodation be required in order for the employee to perform her job; it may be one designed to address “needs related to pregnancy.” The law provides examples of such accommodations: bathroom breaks, breaks for increased water intake, periodic rest, modified work schedules, assistance with manual labor; temporary transfers to less strenuous or hazardous work. Presumably there are many other possibilities which would protect the pregnant employee’s comfort and well-being.
The PWFA deals only with workplace accommodations – it does not affect an employee’s entitlement to leave as established by other New Jersey and federal laws.
There PWFA contains a number of fuzzy concepts which will have to be interpreted by the courts in the coming years. Among others, the law creates a right of action for pregnancy discrimination if an employer “knows, or should know” that an employee is “affected by pregnancy” and fails to accommodate. This reminds me of an experience as a young associate in a New York law firm in the 1970s. I did much of my work for a certain partner, an old-fashioned attorney who was formal, rather prim, and unfailingly courteous in our daily interactions. As I was entering the third trimester of pregnancy, his secretary took me aside and whispered that earlier that day the partner had asked, confidentially, if the secretary had noticed that I appeared to have put on some weight. Needless to say, the (female) support staff had figured it out months earlier. This gentleman would have a serious problem with the “know or should know” standard.
Employers should ensure that managers are trained in the requirements of the PWFA and the steps to follow when implementing them. It is recommended that a manager or HR professional engage in an “interactive process” with a pregnant employee requesting an accommodation to discuss options and arrive at an accommodation beneficial to the employee and acceptable to the employer.As always, document every discussion, every step taken and the reasons for every action.
DISCLAIMER – This article is for general information only and is not intended to provide legal advice or to address specific legal problems. This article does not create an attorney-client relationship. For legal advice concerning real estate transactions and all other legal matters, consult an attorney.
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New Protections for Pregnant Employees
NEW JERSEY LAW AGAINST DISCRIMINATION
New Jersey employers have long been aware that New Jersey’s Law Against Discrimination (the LAD), which protects employees from unlawful discrimination by employers, labor organizations and employment agencies, contains protection for workers that in some respects exceeds the protection provided by Federal laws such as the Civil Rights Acts, the Age Discrimination in Employment Act and the Americans with Disabilities Act. The latest amendment to the LAD is the New Jersey Pregnant Worker’s Fairness Act (the PWFA). One thrust of the PWFA is to prohibit sex discrimination on the basis of pregnancy. This is ground already covered by the federal Pregnancy Discrimination Act (the “PDA”).However, the PWFA,, which applies to all New Jersey employers, requires more than mere non-discriminatory treatment; it requires that employers provide special accommodations to employees on the basis of pregnancy.
To some extent, the PWFA’s accommodation requirements are similar to those mandated by the LAD for disabled employees. In both cases, the employer must provide “reasonable accommodation.” With respect to both disability and pregnancy, what is reasonable depends on the type and size of the business, the cost of the accommodation, the employee’s job duties and the extent to which the accommodation would require waiver of some essential job requirement. However, there are major differences. To qualify for a disability accommodation, an employee must be disabled or perceived as such. The accommodation must be necessary for the employee to perform the essential functions of the job. Normal pregnancy is not considered a disability. A pregnant employee requesting accommodation would have to show that her condition went beyond normal pregnancy to a disabling medical condition.
In contrast, the PWFA requires provision of accommodation to female employees who are “affected pregnancy, childbirth or medical conditions related to pregnancy or childbirth, including recovery from childbirth.” There need not be a disability or additional medical condition. The employee can seek accommodation on the advice of her physician – it is unclear whether an employer may require a doctor’s note. Unlike the disability accommodation,it is not necessary that the accommodation be required in order for the employee to perform her job; it may be one designed to address “needs related to pregnancy.” The law provides examples of such accommodations: bathroom breaks, breaks for increased water intake, periodic rest, modified work schedules, assistance with manual labor; temporary transfers to less strenuous or hazardous work. Presumably there are many other possibilities which would protect the pregnant employee’s comfort and well-being.
The PWFA deals only with workplace accommodations – it does not affect an employee’s entitlement to leave as established by other New Jersey and federal laws.
There PWFA contains a number of fuzzy concepts which will have to be interpreted by the courts in the coming years. Among others, the law creates a right of action for pregnancy discrimination if an employer “knows, or should know” that an employee is “affected by pregnancy” and fails to accommodate. This reminds me of an experience as a young associate in a New York law firm in the 1970s. I did much of my work for a certain partner, an old-fashioned attorney who was formal, rather prim, and unfailingly courteous in our daily interactions. As I was entering the third trimester of pregnancy, his secretary took me aside and whispered that earlier that day the partner had asked, confidentially, if the secretary had noticed that I appeared to have put on some weight. Needless to say, the (female) support staff had figured it out months earlier. This gentleman would have a serious problem with the “know or should know” standard.
Employers should ensure that managers are trained in the requirements of the PWFA and the steps to follow when implementing them. It is recommended that a manager or HR professional engage in an “interactive process” with a pregnant employee requesting an accommodation to discuss options and arrive at an accommodation beneficial to the employee and acceptable to the employer.As always, document every discussion, every step taken and the reasons for every action.
DISCLAIMER – This article is for general information only and is not intended to provide legal advice or to address specific legal problems. This article does not create an attorney-client relationship. For legal advice concerning real estate transactions and all other legal matters, consult an attorney.