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By: Dennis Alessi
Mandelbaum Salsburg
West Orange, New Jersey

New Jersey Governor Chris Christie signed a pregnancy discrimination bill (S-2995, A-4486) on January 21, 2013, which became effective immediately, and amends the Law Against Discrimination (LAD). The LAD is the broad anti-discrimination in employment statute in New Jersey.

Pregnant employees have always been afforded a great deal of protections under the LAD’s prohibition of discrimination against disabled employees, and its obligation on employers to reasonably accommodate an employee’s disability. These protections and obligations apply to a pregnant employee when the pregnancy results in her being disabled from working. The LAD’s definition of what is a “disability” sets such a very low standard that it encompass what, by way of common sense, would not be considered truly disabling physical or mental conditions or impairments. Consequently, many pregnant employees, with what would otherwise be considered very minor pregnancy-related medical problems, that would not fall within the commonly accepted definition of a “disability’’, are still protected from discrimination in employment, and are entitled to reasonable accommodations, under the LAD’s long standing protections of disabled employees.

This amendment now broadens even further the protections against adverse employer actions and the right to accommodations for pregnant employees.  It specifically adds pregnancy to the list of protected classifications of employees under the LAD (including disability, race, religion, age, gender, etc.).  The protections extend to women during and after their pregnancy.

Pregnancy is defined as being in a pregnant state, childbirth, or medical conditions related to pregnancy or childbirth.  The amendment prohibits “an employer from treating, for employment purposes, a woman affected by pregnancy in any manner less favorable than the treatment of other persons not affected by pregnancy but similar in their ability or inability to work.”

Under the amendment, employers are also required to provide reasonable accommodations “to pregnant women and those who suffer medical conditions related to pregnancy and childbirth, such as 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.”

These accommodations are greater than those required under the LAD for disabilities, as the accommodations for pregnant employees are not limited to performance of the employee’s essential job functions. Similar to disability accommodations, the new law has an exception if the accommodation would cause an undue hardship on the business. An accommodation can also include permitting the employee to take an additional amount of time away from work (beyond the maximum normally permitted under the employer’s personnel policies), as necessitated by the pregnancy, and as certified by the employee’s physician, taking into account the condition of the employee and the job requirements.

This latter accommodation requirement has serious implications for both larger employers (those with over 50 employees) and smaller employers. Previously, such smaller employers were not required to provide pregnant employees with the federally mandated 12 weeks of unpaid leave for a pregnancy or adoption under the Family and Medical Leave Act; nor the similar unpaid leave for an ill newborn under the New Jersey Family Leave Act.

This amendment to the LAD does not change this situation, but it does require that even a small employer must consider a pregnant employee’s request for unpaid leave as a reasonable accommodation for her pregnancy. Only if this small employer can establish that it would cause an undue hardship on its business (which is a fairly subjective standard), can this employer decide to deny the unpaid leave.

Moreover, the pregnant employee does not have to establish that she is “disabled” as defined by the LAD, to be entitled to this accommodation. For example, an older woman who is having her first child may be advised by her physician, at the end of her first trimester, that even thought she has no real medical problems resulting from the pregnancy; her chances of carrying the child to term would be greatly improved if she stopped working and stayed home being mostly sedentary. In this situation this small employer would still have to consider giving this employee six months unpaid leave as an accommodation for her pregnancy, even though she is not “disabled” under the very low LAD standard for making this determination.

For employers with over 50 employees, who are subject to the federal FMLA and the New Jersey FLA, after this total of 24 weeks of unpaid leave  is exhausted these employers will also have to consider whether to grant the pregnant employee’s request for additional unpaid leave as an accommodation for  her pregnancy. With the above example, if the pregnant employee is absent for the final 6 months of her pregnancy, and her child is born with a serious health condition, then this employee can use her 12 weeks of FMLA leave for her pregnancy, the remaining 3 months of her pregnancy as unpaid pregnancy accommodation leave (unless the employer can establish undue hardship), and then be entitled to her 12 weeks of FLA leave to care for her ill new born, for a total continuous absence of 9 months.

In this situation the employer must return the employee to her prior position, or to a comparable one, unless her position was eliminated, and no other position is available, due to legitimate needs of the business (e.g. a down-turn in sales and a reduction in the workforce), which is completely unrelated to the pregnant employee having exercised her rights to all this leave time.

Dealing with the rights of pregnant employees under all the various federal and state laws which apply to them, particularly if they are also disabled due to their pregnancy, has always been a potential minefield for the unwary employer. This situation has only worsened considerably with these new amendments to the LAD. It should make all employers be weary of addressing the situation without first consulting experienced employment law counsel.

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