New Jersey has long provided legal protections for pregnant workers. The newly released New Jersey Superior Court Appellate Division’s opinion in Delanoy v. Twp. of Ocean is the first published decision to provide guidance to employers regarding the requirements of the New Jersey Pregnant Workers Fairness Act (“PWFA”). The PWFA amended the New Jersey Law Against Discrimination (“LAD”) on January 17, 2014, to provide greater protections for pregnant women. The PWFA prohibits unequal treatment of pregnant women in the workplace and other contexts; requires that employers provide pregnant workers with reasonable accommodations to enable them to perform the essential functions of their jobs unless an accommodation would present an undue burden for the employer; and prohibits penalizing pregnant workers for requesting or receiving an accommodation.
In Delanoy, a pregnant police officer requested a light-duty maternity assignment pursuant to the police department’s Maternity Standard Operating Procedure (“Maternity SOP”). The Maternity SOP differed from the department’s Light-Duty Standard Operating Procedure (Light-Duty SOP”) for non-pregnant employees. While both SOPs required that the employee use up to all of his or her accumulated leave before transferring to the light duty assignment, the Light-Duty SOP permitted the police chief to waive this requirement, but the Maternity SOP did not. The officer claimed that her re-assigned duties terrified her. She had presented her employer with a doctor’s note requesting that she be placed on light duty until the end of her pregnancy. However, the police department required that she start her pregnancy leave before the pregnancy ended and that she use accrued leave time off during that period.
The Court ruled that the Maternity SOP was unlawfully discriminatory because no pregnant officers could obtain a waiver, although some non-pregnant officers could, in the police chief’s discretion.
In addressing reasonable accommodation, the court explained that while the LAD does not require that an employer create a permanent and indefinite light duty position for non-pregnant employees, the PWFA expressly includes reference to “temporary transfers to less strenuous or hazardous work” as a reasonable accommodation.
While the Delanoy opinion provides some guidance to employers it leaves other questions unanswered, including what comprises a reasonable accommodation or when any conditions attached to an accommodation become a prohibited penalty. Even so, at a minimum, New Jersey employers should, in light of Delanoy:
- Examine their policies for pregnant and non-pregnant employees to ensure facial neutrality, although that alone is not enough to prevent pregnancy discrimination litigation. (Employers should consider whether their policies, particularly with regard to leaves and accommodations, apply equally to pregnant and non-pregnant employees, and if the policies are not appropriate, they should be changed. Any disparity in the provision of benefits or the application of a particular policy may be viewed as discriminatory.)
- Educate managers and decision-makers regarding the administration of policies for pregnant and non-pregnant employees who request accommodations or leaves. Sometimes good intentions can lead to costly and lengthy litigation.
- Establish a process under which all requests for reasonable accommodation are received, analyzed, decided, and responded to in writing. Having a process in place will increase consistency in decision-making and reduce the risk of litigation.
If your business has any questions about the Delanoy case or lawful treatment of pregnant workers under the New Jersey Pregnant Workers Fairness Act or other state and federal laws, please contact Lisa M. Scidurlo, Harry Horwitz or the Stevens & Lee attorney with whom you regularly work.
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