New laws are taking effect in New York City and New Jersey that provide greatly enhanced protections for pregnant women in the workplace. As of January 21, 2014, an amendment to New Jersey's Law Against Discrimination took effect. It explicitly prohibits discrimination on the basis of pregnancy and requires that employers provide a wide range of accommodations for pregnant employees. Beginning on January 30, 2014, employers in New York City also will be faced with new requirements to provide reasonable accommodations to pregnant employees. These laws significantly expand existing federal and state laws that generally only require employers to provide accommodations for pregnant employees who also are suffering from some other physical impairment. All New Jersey and New York City employers are advised to immediately review their existing policies and practices concerning pregnant employees to ensure that they comply with these new obligations.
New Jersey's Law Against Discrimination (the LAD) is a comprehensive anti-discrimination statute which, along with its federal counterparts, prohibits all employers in New Jersey from discriminating against employees on the basis of, among other things, race, religion, national origin, age, sex, and/or disability. Prior to these most recent amendments, the LAD already provided greater protections than its federal analogues by expressly prohibiting discrimination on the basis of an individual's marital status, sexual orientation, and/or gender identity or expression. As of January 21, 2014, New Jersey continued to expand employee protections under the LAD by adding pregnancy to the protected classes listed above. In addition to pregnant women, this amendment to the LAD also protects women who recently have given birth or have medical conditions related to pregnancy, and requires employers to provide a reasonable accommodation to pregnant women who request it on the advice of a medical care provider.
This latter requirement has the potential to create substantial obligations for New Jersey employers. Although the amendment states that it does not entitle women to extended pregnancy leave, employers will be expected to provide other accommodations, 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. Unlike the accommodations that employers are required to provide to employees with disabilities, accommodations for pregnant women and pregnancy-related conditions are not limited to those that would assist the employee to perform the essential functions of the job, and thus may encompass a much broader range of potential accommodations. Employers may avoid this requirement only by showing that implementing the proposed accommodation would impose an undue hardship. Whether the requested accommodation constitutes an undue hardship is a fact-intensive inquiry depending on factors such as the size of the employer's business, the type of operations, the cost of the accommodation, and the extent to which an accommodation would result in the waiver of essential functions of the job.
The expansion to the LAD comes right before a nearly identical expansion to the New York City Human Rights Law (the NYCHRL). Starting on January 30, 2014, all employers with four or more employees in New York City must provide reasonable accommodations to employees for pregnancy, childbirth, or other related medical conditions so that employees can perform the essential requisites of the job. Such reasonable accommodations may include those noted above with respect to the LAD. Unless the employer can prove that the accommodation would impose an undue hardship, it will now be unlawful to refuse to provide a requested accommodation if the employer knows or should know of the employee's pregnancy or related condition.
Starting on January 30, 2014, covered New York City employers also will be required to provide the following written notice to all new employees of their rights under this amendment to the NYCHRL: http://www.nyc.gov/html/cchr/html/publications/pregnancy-employment-poster.shtml#sthash.G4Uxyd3b.dpuf. All existing employees will be expected to receive a copy of the poster by May 30, 2014. In lieu of providing written notice, the poster also may be conspicuously posted in the employer's business in a place accessible to employees.
These amendments may not be the only legislative action taken with respect to pregnant employees in the near future. Currently, a bill that would provide pregnant women with even greater protections than those afforded by the LAD or NYCHRL has been introduced in both houses of Congress and is currently in committee.