On January 21, 2014, New Jersey Governor Chris Christie signed legislation (effective immediately) that expands the rights of pregnant women in the workplace. This legislation signals a growing trend of employee-protective legislation related to pregnancy and comes on the heels of similar laws passed in New York City (effective Jan. 30, 2014), Maryland and California. Specifically, the legislation amends the New Jersey Law Against Discrimination (“NJLAD”) by requiring employers in New Jersey to provide reasonable accommodations to pregnant women and those who suffer medical conditions related to pregnancy and childbirth, unless such accommodations would pose an undue hardship on an employer’s business. Further, the amendment expressly adds “pregnancy” to the list of characteristics protected under NJLAD’s anti-discrimination and anti-retaliation provisions, which apply to New Jersey employers, labor organizations, landlords, lending institutions, and other entities that offer public accommodations. Because the legislation took effect immediately upon the Governor’s signature on January 21, New Jersey employers should act now to ensure compliance.
What types of accommodations are contemplated by the law?
The law provides specific examples of accommodations that an employer may be required to provide on the advice of the employee’s physician, including:
- 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.
The law requires an employer to provide such accommodations to a woman that the employer knows, or should know, is affected by pregnancy, absent a showing of undue hardship.
What is undue hardship?
Employers are not obligated to provide the requested accommodation, if such an accommodation would impose an “undue hardship” on the employer’s business. The factors considered in the “undue hardship” analysis include:
- 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 accommodation 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 nonbusiness necessity requirement.
Does this law expand leave entitlements under the FMLA and NJFLA?
Employers covered by the Family Medical Leave Act (“FMLA”) and New Jersey Family Leave Act (“NJFLA”), which allow for a maximum of twelve weeks of pregnancy-related leave, should note that the new law does not define the amount of leave available to a woman who is pregnant or recovering from childbirth. Consequently, New Jersey employers that receive an accommodation request seeking additional leave because of pregnancy or childbirth-related conditions now have an obligation to review and consider such requests.
What steps should New Jersey employers take to ensure compliance with the law?
Employers with operations in New Jersey should immediately revise their reasonable accommodation policies and procedures to reflect the requirements included in the new law and train managers and human resources professionals on the changes. For each accommodation request, the employer should:
- Document in writing its receipt of the request for accommodation, providing a copy to the individual and retaining a copy for the employer’s records. This allows the employer to show that it took the request seriously and responded promptly.
- Ask the individual for medical documentation to support the accommodation request, including notes from doctors or other health care providers.
- Confer with the individual to discuss accommodation alternatives if the requested accommodation would impose an undue hardship on the business.
- Document in writing the discussion about the accommodation and the final determination about how the accommodation request is resolved, including any undue hardship analysis.