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KNOW YOUR RIGHTS WHEN YOU’RE EXPECTING

Added on 08/18/2016 by kalsonlaw

In 2014 the New Jersey Law Against Discrimination was amended to include the pregnant workers fairness act also known as the LAD pregnancy amendment. Before this amendment, pregnancy discrimination was not specifically prohibited by the Law Against Discrimination (LAD). A pregnant woman had to allege sex discrimination (as it is a woman who gets pregnant) or disability discrimination if the pregnant woman had medical complications. A pregnant woman is not always disabled. In fact, many women work up until the month or day they leave to deliver a child. Some employers simply presume a pregnant woman is disabled. An employer may force a pregnant employee to leave the job earlier than she wanted to. This is actionable. Many women today choose to save all of their leave under the state and federal leave laws for after the child is born in order to have sufficient time to bond with the child during the early months of its life.

The pregnancy amendment specifically added pregnancy as a protected class. It did much more than that. Even a woman who has no disability or health concerns with a pregnancy, is now entitled to reasonable accommodation, the same rights and requirements as exists for disabled employees. Accommodations for pregnant women might include temporary reassignment, altering of job responsibilities or even extra breaks to use the bathroom. The law also prohibits retaliation against a woman for asking for accommodations. As with disability law, the accommodations must be “reasonable”, and not unduly burdensome. A good faith, interactive process is required where the parties talk to each other about possible accommodations. The request for accommodation should be supported by a note from a physician. However, this should not be necessary with common sense items such as a woman who has morning sickness that needs to go to the bathroom. Accommodations identified in the amendment include bathroom breaks, breaks for water intake, assistance with manual labor, job restructuring, temporary transfers to less strenuous assignments and modified work schedules. The pregnancy amendments do not provide a leave of absence as a reasonable accommodation for a normal pregnancy. If a pregnant employee is seeking a leave of absence as a reasonable accommodation, it must be due to some disabling condition as a result of her pregnancy.

As with every change to the LAD, employers need to update their policies and handbooks. Employers should always provide training to managers and human resource personnel on the requirements of any changes in the law.

Similar to any discrimination case, comments of a Supervisor may prove to be evidence of discrimination. Recently, one of my clients who was terminated, advised me that the Supervisor asked her if she was pregnant when she was employed. Thereafter, when the employee confirmed the pregnancy, the Supervisor inappropriately stated “I hope you’re not going to be one of those employees who has pregnancy after pregnancy and takes leave after leave for her pregnancy”. Additionally, many employers make inappropriate comments that a pregnant woman simply isn’t a serious, dedicated worker and as such is not going to return to work after her pregnancy and leave for child care bonding. This is simply not the case today. Most women do, in fact, return to work after the birth of their child.

There are also regulations from the U.S. Department of Labor, Wage and Hour Division, concerning break time for nursing mothers under the Fair Labor Standards Act (FLSA). In general, employers are required to provide reasonable break time for an employee to express milk for her nursing child for one year after the child’s birth. Employers are required to provide “a place other than a bathroom”, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express milk. I’ve had cases where a woman was told to express milk in a public restroom. A bathroom, even if private, is not permissable under the FLSA. Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, the employers already provide compensated breaks, an employee who uses that break time to express milk should be compensated in the same way that other employees are compensated for break time.

Even though we’ve come a long way, unfortunately discrimination and prejudice towards women and pregnant employees is still prevalent. Working mothers are still seen as less dedicated workers who are not promoted at the same frequency as male employees. If you feel that you were the victim of pregnancy discrimination or have not been provided a reasonable location for expressing breast milk, you should consult with an experienced labor and employment attorney.