Last updated June 28, 2017.
The New Jersey Law Against Discrimination (the “LAD”) prohibits employers from discriminating against workers on the basis of certain protected categories, such as race, gender, age and disability. Formerly, however, the LAD did not expressly include “pregnancy” as a protected category. This was so, even though pregnant workers often found themselves fired, faced with cut hours/reduced schedules, passed over for promotion, or otherwise targeted on the basis of their pregnancy.
In January of 2014, the New Jersey legislature enacted the New Jersey Pregnant Workers Fairness Act (the “PWFA”) to add “pregnancy” to the LAD’s list of protected categories. The PWFA defines the category broadly to include “pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth.” Thus, the statute not only protects workers who chose to take time off after the birth of their child, but also workers with high-risk pregnancies requiring special medical care.
How does the New Jersey Pregnant Workers Fairness Act work?
The PWFA goes beyond the protection formerly provided to pregnant workers under the LAD, in two major ways:
First, the PWFA applies not only to workers whom employers know are “affected by pregnancy,” but to workers employers should know are “affected by pregnancy.” The law requires employers to treat these workers no less favorably than employees who are not pregnant but are similarly situated “in their ability or inability to work.”
Second, the PWFA not only prohibits employers from discriminating against pregnant workers, but mandates that employers provide “reasonable accommodations” to pregnant workers upon the advice of their physicians. Such accommodations may include more bathroom breaks for pregnant workers, temporary assignment to less taxing physical jobs, or modified work hours. Accommodations are not considered reasonable, and therefore not legally required, if they cause “undue hardship” to the employer. The determination of “undue hardship” is fact-specific, but generally occurs when a requested accommodation is too costly, too disruptive to normal business operations, or requires the employer to do away with the pregnant employee’s essential job functions.
Finally, unlike the federal statutes governing pregnancy discrimination, the PWFA applies to all New Jersey employers, regardless of size. Hopefully, it will help both employers and employees by promoting greater job retention and less turnover due to pregnancy. At the very least, the PWFA provides much-needed clarification that pregnancy discrimination is illegal under state law.
What was pregnancy discrimination protection like before the PWFA?
Two federal statutes, the Pregnancy Discrimination Act and the Americans With Disabilities Act, conferred pregnant workers in New Jersey a degree of protection. However, both laws applied only to workplaces with fifteen (15) or more employees. Moreover, the Pregnancy Discrimination Act did not require employers to make any “reasonable accommodation” for a worker’s pregnancy. Whether pregnancy qualified as a “disability” meriting “reasonable accommodation” under the Americans With Disabilities Act was a fact-specific question and open to argument.
Given the foregoing, and given the significant legal hurdles involved in filing in federal court, plaintiff’s employment attorneys often relied on the LAD’s express prohibitions against “gender” and “disability” discrimination to fight pregnancy discrimination in New Jersey state court. However, this was an awkward, indirect, and (to some judges, at least) confusing way to address a very prevalent and pressing form of bias.
What is my leave time if I’m a pregnant worker in New Jersey?
Under the New Jersey Family Leave Act, employers are required to allow employees to take up to twelve (12) weeks of unpaid leave in a 24-month period for the birth or adoption of a child. It’s important to note that this leave can begin at any time within a year after the date of the birth or placement for adoption. This law applies to all public employers and private employers with fifty (50) or more employees.
Additionally, an employer may exclude certain employees from this benefit if they are among the highest 5 percent or seven-highest (whichever is greater) of the employer’s paid salaried employees.
To see how other states compare, check out this map from the U.S. Department of Labor on state-level provisions for pregnancy accommodation and pregnancy-related disability.
See also: FMLA More Than 12 Weeks? Here’s What to Know
How do I get help if I’ve been discriminated against?
If you’re pregnant and you feel you’ve been discriminated against at work, you should speak with a qualified employment attorney right away to discuss your legal options. At Zatuchni & Associates, we’re here to help. Call us today at 609-243-0300 or contact us online for a free consultation.
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