NEW JERSEY COURT FINDS PREGNANT WORKERS ARE ENTITLED TO TEMPORARY LIGHT-DUTY ASSIGNMENTS AS A FORM OF REASONABLE ACCOMMODATION

In 2014, the New Jersey Pregnant Workers’ Fairness Act (“NJPWFA”) was signed into law to strengthen protections afforded pregnant employees. Under the NJPWFA, employers must provide pregnant workers reasonable accommodations that would allow them to continue working in their positions. The NJPWFA forbids employers from treating pregnant workers in a “manner less favorable than the treatment of other persons not affected by pregnancy.” N.J.S.A. 10:5-12(s). However, the statute does not require employers to afford pregnant employees with the same reasonable accommodations it gives to nonpregnant injured workers similar in their ability or inability to work.

The NJPWFA provides examples of reasonable accommodations, “such as…temporary transfers to less strenuous or hazardous work.” This means that if a pregnant worker requested a temporary transfer to a light-duty position made available to a similarly situated nonpregnant injured worker, then the pregnant employee should be entitled to such an accommodation under the NJPWFA. Our New Jersey Appellate Division recently addressed this very issue in Delanoy v. Twp. of Ocean, 2020 N.J. Super. LEXIS 1, *2 (Decided January 3, 2020)

In Delanoy, plaintiff, a pregnant police officer, notified her employer of her doctor’s order prohibiting her from performing certain essential patrol officer functions (e.g. carrying a gun) during the later stages of  her pregnancy, and in turn recommended she be removed from patrol duty and transferred to a “light-duty” position during such time. The employer police department (the “Department”) assigned plaintiff to a non-patrol position pursuant to its “Maternity Assignment Standard Operating Procedure” (‘Maternity SOP’)…which allows pregnant officers to work a maternity assignment, but on the condition that the officer use all her accumulated paid leave time e.g., vacation, personal, and holiday time) before going on that different assignment.” Id. at *3. The Department also maintained an almost identical “Light-Duty SOP” for nonpregnant injured officers, but unlike the Maternity SOP, it expressly granted the Chief of Police authority to waive the paid leave time requirement. When the Department refused to waive the paid leave requirement for plaintiff’s transfer as it did for those receiving Light-Duty SOP transfers, plaintiff filed a failure to accommodate discrimination claim against them under the NJPWFA. The Department argued that plaintiff’s transfer to a fundamentally different assignment did not constitute an accommodation as defined by the LAD because plaintiff was not entitled to a reasonable accommodation since none existed that would allow her to continue performing the essential functions of a patrol officer while pregnant.

The Court rejected this argument explaining that the Department failed to “overcome the important distinction between an accommodation that is temporary in nature…versus a permanent accommodation that enables an employee to perform her usual job functions on an ongoing and permanent basis… as recognized by the Supreme Court in Raspa,” and expressly adopted by the NJPWFA’s language. Id. at *30.; See Raspa v. Gloucester County Sheriff’s Office, 191 N.J. 323, 340 (2007)(“light duty positions were not intended to be a permanent post, but a temporary way station or bridge between an inability to work due to injury and a return to full employment status.”). Therefore, under the NJPWFA, “female workers near the end of their pregnancies…have a right to obtain…a transfer to a temporary different assignment…akin to the ‘temporary way station’ described in Raspa.Id. at *31-32.

A national standard for accommodating pregnant women in the workplace would be established if the proposed federal Pregnant Workers Fairness Act, H.R. 2694 (PWFA) is passed by Congress and signed into law by the President. To address the endemic problem of women facing the Hobson’s choice of choosing between being pushed out of their jobs or forced to risk their health to continue to earn a paycheck to support their families, the PWFA, which has been re-introduced in every congressional session since 2012, would require employers to, among others, reasonably accommodate for pregnancy, childbirth and related medical conditions, unless the employer can demonstrate that to do so would create an undue hardship. Under the PWFA, an employer could not unilaterally force a pregnant worker to take leave when another form of reasonable accommodation could help keep her on the job.  Furthermore, the PWFA would require the U.S. Equal Employment Opportunity Commission (EEOC) to make rules implementing the law within two years of enactment, including a list of example accommodations that should be provided unless they pose an undue hardship for the employer.  Mashel Law strongly advocates for the passage of the PWFA.

If you believe you have been unfairly treated by an employer because of pregnancy, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help in assessing whether you have an actionable claim against your employer. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of em