The Pregnant Workers Fairness Act (“PWFA”) which came into effect earlier this summer requires employers to provide “reasonable accommodations” for pregnant and postpartum workers went into effect expanding protections for millions of people. The PWFA applies to employers with 15 or more employees, including hourly workers. In addition to covering pregnant employees, it also protects those with “related medical conditions,” including women undergoing fertility treatment, as well as those who have postpartum depression and those who have had an abortion or pregnancy loss. Importantly, the PWFA does not replace state law such as New Jersey’s Law Against Discrimination (the “LAD”) which may arguably be more protective of workers affected by pregnancy, childbirth, or related medical conditions.
Examples where the PWFA would require reasonable accommodations for pregnancy include, but are not limited to, the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately-sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. i.e., would cause significant difficulty or expense to the employer or coworker.
Fortunately, the PWFA prohibits employers from:
- Requiring an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
- Denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
- Requiring an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
- Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
- Interfering with any individual’s rights under the PWFA.
For violations of the PWFA a victim can file a private action in court where a prevailing plaintiff court may obtain an award of lost pay, interest, compensatory damages, punitive damages, costs, reasonable attorneys’ fees, and experts’ fees to the extent that such relief is available under the law.
Similar to the PWFA, New Jersey’s LAD law requires employers requires to grant pregnant woman a reasonable accommodation for pregnancy, childbirth, related medical conditions, and breastfeeding to enable you to continue working while maintaining a healthy pregnancy or return to work after giving birth. Likewise, under the LAD if a person is pregnant an employer must grant you a reasonable accommodation recommended by your doctor, including bathroom breaks, water breaks, rest breaks, assistance with manual labor, job restructuring, modified work schedules, and a temporary transfer to less strenuous or hazardous work, unless your employer can show that doing so would be an undue hardship on its operations. Factors to be considered when determining whether an accommodation would be an undue hardship to an employer include the overall size of your employer’s business with respect to employees, facilities, and budget; the nature and cost of the accommodation needed; and the extent to which the accommodation would involve waiver of an essential requirement of your job. N.J.A.C., 12:13-2.5(b).
Once a request for accommodation is made the LAD requires, “both parties [employer and employee] have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.” Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 400 (App. Div. 2002) (emphasis added). To be sure, “[i]t is not necessary that requests for reasonable accommodations be in writing or even use the phrase ‘reasonable accommodation.’ Id. (citing Taylor v. Phoenixville School District, 184 F.3d 296, 313 (1999)). “[T]here are no magic words to seek an accommodation”. Id. “[A]n employer who acts in bad faith in the interactive process will be liable if the jury can reasonably conclude that the employee would have been able to perform the job with accommodations.” Id. (quoting Taylor, supra, 184 F.3d 317-18); cited with approval by Victor v. State, 203 N.J. 383, 414-15 (2010); accord Jones v. Aluminum Shapes, 339 N.J. Super. 412 (App. Div. 2001). “A party that fails to communicate, by way of initiation or response, maybe…acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility.” Taylor v. Phoenixville, 184 F.3d at 312, 317 (quoting Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 285 (7th Cir. 1996)).
If you believe your employer is failing or has failed to accommodate your pregnancy or postpartum in violation of the PWFA or LAD, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.