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Tuesday, March 6, 2018

I’m a New Jersey Executive, Can My Employer Force Me to Fly While I Am Pregnant? Pregnant Employees and the Right to Ask for Accommodations at Work

In today’s economy, most women who are pregnant and work cannot not afford to lose their job. They may need the employer to allow reasonable accommodations or adjustments to their work to allow them to keep safely working while pregnant. In New Jersey, the Pregnant Workers Fairness Act (PWFA) amended the New Jersey Law Against Discrimination and goes a step further than some other laws to protect women who are pregnant, have given birth or suffer a related medical condition. A pregnant employee in New Jersey has the right to ask for a broad range of reasonable accommodations to allow her to keep working.

Under the NJLAD, it is prohibited for an employer to treat a woman employee that the employer knows, or should know, is affected by pregnancy in a manner less favorable than the treatment of other employees not affected by pregnancy but who are similar in their ability or inability to work. Employers must allow reasonable accommodations to the pregnant worker in the same manner that an employer must allow reasonable accommodations to an employee who is disabled. However, what is significant is that with the adding of “pregnancy” as a protected class, a pregnant employee does not have to allege that she is “disabled” by the pregnancy in order to be entitled to reasonable accommodations to allow her to keep working. The law assumes that the very fact that she is pregnant and working, means at some time or times, she may need adjustments to her work or schedule to allow her to continue working throughout her pregnancy.

This Law Office has litigated pregnancy discrimination cases for employees in the private and public sectors, both in Federal and State Court, and obtained successful monetary results for clients.

Under§ 10:5-12 (s), for legal protection to pregnant employees, the statute mandates when the employee, based on the advice of her physician, requests an accommodation, the employer of an employee who is a woman affected by pregnancy shall make available to the employee a reasonable accommodation(s) in the workplace for needs related to the pregnancy. The only exemption allowed is when the employer can demonstrate that providing the accommodation would be an undue hardship on the business operations of the employer.

What Is Reasonable?

What is a reasonable accommodation depends on the type of work and other factors. The statute lists some examples of 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 transfers to less strenuous or hazardous work.

The above list within the statute is not all inclusive and some have argued that it identifies the concerns of blue collar workers more than high-end female executives, but the law applies to all pregnant workers, regardless of their job title.

With the emergence of video conferencing such as Skype, Go Meeting, Join.me, etc., it might not be necessary to be present in person at long distance business conferences, at least temporarily, to avoid air travel. Temporary job restructuring, a modified work schedule and a temporary transfer to less strenuous or hazardous work that does not require air travel may be a reasonable accommodation if it does not cause an undue hardship on the business operations of the employer in some circumstances.

Can I Be Paid for Rest Periods or Breaks Related to My Pregnancy Condition?

NJLAD does not alter any employee's rights under law to paid or unpaid leave in connection with pregnancy. It does not otherwise increase or decrease any employee's rights to paid or unpaid leave in connection with pregnancy. The employee is on par with other employees’ breaks given by the employer. The employer does not have to pay the employee who is affected by pregnancy for the breaks, but if the employer allows for paid breaks, paid breaks can be used by the employee who is affected by pregnancy to rest, even when further unpaid break time is required by the employee.                               

Am I Allowed Reasonable Accommodations When I Am No Longer Pregnant?

Yes. Note that the statute states, “The employer of an employee who is a woman affected by pregnancy shall make available to the employee a reasonable accommodation.” The statute does not state, “The employer of a pregnant employee shall make available to the employee a reasonable accommodation.” Therefore, a woman who has given birth and who is no longer pregnant, but who is affected by pregnancy and requires a reasonable accommodation is covered under the statute, placing a legal duty on the employer to make available to the employee a reasonable accommodation.

The statute clarifies this requirement further by stating:

For the purposes of this section “pregnancy or breastfeeding” means pregnancy, childbirth, and breast feeding or expressing milk for breastfeeding, or medical conditions related to pregnancy, childbirth, or breastfeeding, including recovery from childbirth

What Factors Are to Be Considered as to Whether There Is an Undue Hardship on the Employer?

For the purposes of this subsection of the statute, in determining whether an accommodation would impose undue hardship on the operation of an employer's business, the factors to be considered include the:

  • overall size of the employer's business with respect to the number of employee
  • number and type of facilities,
  • size of budget,
  • type of the employer's operations,

  • composition and structure of the employer's workforce,

  • nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions, and outside funding, 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.

    What You Can Do If you believe that your New Jersey employer refused to make reasonable accommodations that would allow you to keep safely working, or that your employer may have discriminated against you because of your pregnancy, treated you unfairly because of pregnancy, childbirth or a related medical condition, it is important to consult with an aggressive and experienced New Jersey employment attorney. If you complained about such discrimination and your employer then retaliated against you, you may also have a claim for retaliation.I am an aggressive and compassionate employment law attorney who is experienced in successfully representing pregnant women, disabled women, women on FMLA leave and related issues. If you believe you are being subjected to such unlawful workplace discrimination or retaliation, please contact Hope A. Lang, Attorney at Law today for a free consultation.

    New Jersey employment law attorney Hope A. Lang, Attorney at Law serves clients throughout the state, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.             


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