The proposed law would offer increased protections for nondisabled employees who are affected by pregnancy or childbirth and would impose greater accommodation requirements on employers.
On January 6, the New Jersey Assembly passed a bill expressly banning pregnancy discrimination and imposing new workplace accommodation requirements for pregnant employees and employees experiencing medical conditions relating to pregnancy or childbirth. The bill, which would amend the New Jersey Law Against Discrimination (NJLAD), has already received unanimous Senate approval and is now awaiting Governor Chris Christie’s signature.
The proposed amendment would expressly add “pregnancy” to the list of characteristics protected under the NJLAD. It would also compel employers to make reasonable workplace accommodations for female employees who the employer “knows or should know” are “affected by pregnancy”—i.e., women who are pregnant and women who have medical conditions relating to pregnancy or childbirth—and who request accommodations with the advice of their medical providers. Such accommodations include providing bathroom breaks, breaks for increased water intake, periodic rest, modified work schedules, assistance with manual labor, and temporary transfers to less strenuous or hazardous work. The law, however, specifies that it would not provide pregnant women with any additional leave entitlement.
If signed, the new law would impose a significant burden on employers, requiring that they grant the requested accommodations unless doing so would impose undue hardship on the operation of the employers’ businesses. The factors that would be considered in the undue hardship analysis include the following: (i) the overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget; (ii) the type of the employer’s operations, including the composition and structure of the employer’s workforce; (iii) the nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions, and outside funding; and (iv) the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or nonbusiness necessity requirement.
The legislation would extend privileges that are unavailable to other employees, including many disabled employees. Specifically, the law would require an employer to provide accommodations (and potentially job modifications) to a pregnant employee that may make her more comfortable in the workplace, as opposed to limiting accommodations to those that are necessary for the employee to perform the essential functions of her job. In this regard, it would be a significant change for New Jersey employers because it stands in contrast to the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA). The ADA and PDA require only that employers treat pregnant employees the same as other employees with respect to accommodations and do not generally require job modifications for employees experiencing normal pregnancies. This change signals a growing trend of employee-protective legislation in this area and comes on the heels of similar laws passed in New York City (which go into effect on January 30, 2014), Maryland (which went into effect in October 2013), and California (which went into effect in December 2012).
As Governor Christie may soon sign this bill into law, employers with operations in New Jersey should review their reasonable accommodation policies to determine whether they must be revised to reflect the requirements included in the legislation. In addition, human resources and benefits employees should be trained on the new requirements, and employers should consider adding information about these requirements to their manager training programs.
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