Pregnant employees – especially those categorized as “high-risk”– often ask their employers for a temporary reassignment to light-duty work prior to taking maternity leave. Desk work, for example, may be medically necessary for a pregnant employee whose physician has placed restrictions on the amount she may lift, stand, or walk.
Many if not most New Jersey employers have a policy in place for “light-duty” work. But just because a policy exists does not mean that it’s legal. As a recent New Jersey appellate case shows, policies should treat pregnant employees requesting a light-duty accommodation the same as other, non-pregnant employees seeking the same accommodation. Otherwise, such policies may well violate the new pregnancy protections of the New Jersey Law Against Discrimination (the “LAD”).
Delanoy v. Township of Ocean
In Delanoy v. Township of Ocean, Docket No. A-2899-17T4 (App. Div. January 3, 2020), the plaintiff was a police officer who informed her Police Department (PD) supervisors that she was pregnant, and that her doctor advised her to be taken off patrol through the duration of her pregnancy as a result. The plaintiff asked the PD for the specific accommodation of being transferred to “light-duty” work during her pregnancy.
The PD did in fact assign the plaintiff to a light-duty job – an administrative position with the records division – pursuant to the PD’s “Maternity Assignment Standard Operating Procedure” policy, or “Maternity SOP”. Under the Maternity SOP, the plaintiff was required to exhaust all of her accumulated paid leave time as a condition of receiving the light-duty job. In practice, this meant that the plaintiff had to deplete her paid leave by beginning maternity leave roughly two weeks earlier than she had planned, even though she was allegedly still able to report to her light-duty position during that time.
The wrinkle in this case was that the PD had another, separate policy that governed requests for light-duty work from non-pregnant employees: The Light-Duty Standard Operating Procedure, or “Light-Duty SOP.” Just like the Maternity SOP, the Light-Duty SOP required employees to exhaust all accumulated paid leave time as a condition of receiving light-duty work. However, unlike the Maternity SOP, the Light-Duty SOP allowed the Chief of Police to waive the exhaustion of leave requirement for employees at his discretion.
Long story short, the plaintiff filed a pregnancy discrimination claim against the PD. Part of her claim sought a declaratory judgment (in other words, a legally binding declaration by a court) that the PD’s Maternity SOP was discriminatory under the LAD. The lower court dismissed the plaintiff’s claim via a summary judgment decision. However, the appellate court reversed, holding that the Light-Duty SOP gave non-pregnant employees preferential treatment over pregnant employees seeking a similar light-duty accommodation. Specifically, the Light-Duty SOP gave non-pregnant employees the chance to have their exhaustion-of-leave condition waived by the Chief of Police, while pregnant employees were denied that option.
In reaching its conclusion, the appellate court relied upon new language added to the LAD via the New Jersey Pregnant Workers Fairness Act (the “PWFA”):
“It shall be an unlawful employment practice for an employer to treat, for employment-related purposes, a woman employee that the employer knows or should know is affected by pregnancy . . . in a manner less favorable than the treatment of other persons not affected by pregnancy . . . but similar in their ability or inability to work.”
What to Watch Out For
Given Delanoy, pregnant employees seeking a light-duty workplace accommodation should ask:
Does my employer have a single policy for requesting light-duty work that applies to all workers? Or is there a separate policy that applies only to pregnant workers?
- If your employer has two policies: Are they written, on their face, to give equal treatment to pregnant and non-pregnant workers in seeking a light-duty accommodation? Or do they impose more onerous requirements upon one group?
- If your employer has a single policy: In practice, is it applied equally to pregnant and non-pregnant workers alike? Or does one group find that their requests for light-duty work are usually granted while the other finds their requests denied or limited?
- Are all workers who request an accommodation for light-duty work free from harassment and/or retaliation? These can take the form of negative reviews, reduced hours or shift changes, or hassling over medical documentation.
The upshot is, pregnant and non-pregnant employees should be treated alike when they ask for light-duty work. If you are pregnant and concerned that your employer has a discriminatory light-duty policy, or is applying it unevenly, call our offices today for a free consultation.