If you are a pregnant worker requiring an accommodation for your pregnancy, you will have further protection from discrimination under a new law to go into effect later this month. Covered employers cannot make you take leave of absence if a reasonable accommodation for your pregnancy is available. President Biden signed the Pregnant Workers Fairness Act (PWFA) on December 29, 2022, as part of an appropriations bill. Pregnant workers now gain further rights for pregnancy accommodations under a new federal law which goes into effect on June 27, 2023. You may read the text of bill here.
Employers are specifically required under this new law to provide reasonable accommodations for pregnancy
This bill was necessary because while some states, like NJ, already require accommodations for pregnant workers, other states have weaker laws and at least one state has no state statute to require accommodations. Under the Pregnant Workers Fairness Act (PWFA) employers are required to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship on the employer’s operations.
The PWFA Applies Only to Accommodations for Pregnancy.
The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. In NJ, existing state and federal laws make it illegal for an employer to terminate or otherwise discriminate against workers based on pregnancy, childbirth, or related medical conditions. Workers affected by pregnancy, childbirth, or a related medical condition may be able to get an accommodation under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act. The Americans with Disabilities Act, (ADA) prohibits discrimination against an employee based on a disability, including a disability related to a pregnancy such as diabetes that develops during pregnancy. Although pregnancy itself is not a named disability under the ADA, a pregnant worker may have one or more pregnancy-related impairments that qualify as a disability under the ADA. The ADA requires an employer to make a reasonable accommodation for an employee’s disability. An employer may have to provide that worker with a reasonable accommodation for the pregnancy-related disability. In New Jersey, pregnancy is a protected class under the New Jersey Law Against Discrimination (NJLAD) and the NJLAD requires providing accommodations for pregnancy.
Who Receives Protections for Pregnancy Accommodations under the PWFA?
The PWFA protects employees and applicants of “covered” employers who have known limitations related to pregnancy, childbirth, or related medical conditions.
What is meant by a “covered” employers under the PWFA
Covered employers include private and public sector employers with at least 15 employees, Federal agencies, Congress, employment agencies, and labor organizations.
Examples of Reasonable Accommodations for Pregnant Workers
A House Committee Report on the PWFA provide some examples of possible reasonable accommodations including:
Being excused from activities that involve exposure to compounds not safe for pregnancy,
Being excused from strenuous activities that are not safe for the pregnancy or mother,
Receive additional break time to use the bathroom, eat,
Have access to be able to sit or drink water,
Receive closer parking spaces where possible,
Receive appropriately sized uniforms and safety apparel,
Being allowed leave or time off to recover from childbirth.
What Is an Employer’s Undue Hardship?
What is necessary for an exemption under “undue hardship” is fact sensitive but undue hardship is a significant difficulty or expense for the employer. Covered Employers are required to provide reasonable accommodations unless they would cause an undue hardship on the employer’s operations.
Can My Employer Require Me to Take Leave Rather than Accommodate My Pregnancy?
NO. An employer cannot require an employee to take leave if another reasonable accommodation can be provided that would allow the employee to keep working.
Can My Employer Retaliate Against Me?
NO. It is illegal for an employer to retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding or investigation or interfere with any of your individual’s rights under the PWFA.
In NJ, an Employee Can File a Pregnancy Discrimination Lawsuit Faster under CEPA or the NJLAD.
In NJ, an employee who is retaliated against for reporting or opposing such unlawful pregnancy discrimination, and who wants to file a lawsuit for such retaliation does not have to first go through time consuming administrative procedures before they are allowed to file a lawsuit in Federal Court. In NJ, an employee can file quickly and directly in State Court for such pregnancy discrimination and retaliation under the NJ Whistleblower statute, CEPA and/or the NJLAD.
What are some more specific prohibitions:
The House Committee on Education and Labor Report on the PWFA provides as follows:
SEC. 2. NONDISCRIMINATION WITH REGARD TO REASONABLE ACCOMMODATIONS RELATED TO PREGNANCY.
It shall be an unlawful employment practice for a covered entity to—
(1) not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;
(2) require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process referred to in section 5(7);
(3) deny employment opportunities to a qualified employee if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical >conditions of a qualified employee;
(4) require a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee; or
(5) take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.
What You Can Do
I am an aggressive and compassionate employment law attorney who is experienced in successfully representing employees who suffered illegal pregnancy discrimination, including pregnant teachers. If you find yourself in a situation with inadequate job security because of the aforementioned issues, if you are thinking of resigning, or have been fired or think you will be fired, it is important that you consult with an attorney who is experienced in pregnancy discrimination. You may contact this office today for a free consultation.
I am successful in bringing employee lawsuits against governmental entities and private employers and recovering money for victims of pregnancy, age, race, sex, disability, sexual orientation, and other discrimination. If you think you have been fired, are being pushed out of your job or retaliated against, you should contact our disability lawyer immediately for a free consultation.
If You Quit Your Job, You May Lose Right to Prevail in a Lawsuit.
If you quit your job, you may lose your right to prevail in a lawsuit. If you are thinking of quitting, or you think you will be fired, you should know that you may lose your right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of quitting, or think you will be fired, you should contact this office immediately to discuss your options in the safest way for you.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and in every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.