Articles

New Jersey Pregnant Workers Fairness Act [PWFA]

By: Attorney Andrew L. Watson

On March 9, 2021, the New Jersey Supreme Court addressed legislation known as the New Jersey Pregnant Workers Fairness Act [PWFA] and instructed that it offers three potential discrimination causes of action to pregnant and breastfeeding employees:  1) unequal or unfavorable treatment; 2) failure of the employer to accommodate; and 3) unlawful penalization.

The Court examined the PWFA in the context of a lawsuit filed by Kathleen Delanoy, a pregnant police officer employed by the Township of Ocean, who asked for light duty work at the direction of her doctor.  Her employer had two light duty Standard Operating Procedures [SOPs], one called the Maternity SOP that applied to pregnant officers, and the other called the Light Duty SOP, which applied to non-pregnant injured officers.  Both SOPs required that officers use their accumulated paid leave time as a condition of the light-duty assignment.  However, under the Light Duty SOP, the police chief had discretion to waive the exhaustion of accumulated leave condition, while the Maternity SOP did not have an equivalent provision. At least two male officers had been granted a waiver of the accumulated leave condition under the Light Duty SOP.

Officer Delanoy’s lawsuit asserted, among other things, that the SOPs and Ocean’s treatment of her violated the PWFA. The Supreme Court agreed, holding that the Maternity SOP applied to Officer Delanoy was invalid on its face because it plainly treated pregnant employees differently and less favorably than non-pregnant employees who were similar in their ability or inability to work.  Therefore, by enacting the Maternity SOP, the Township of Ocean violated the PWFA.

The Court instructed too that the PWFA makes reasonable accommodation of a pregnant employee based on the advice of her physician, an employer obligation.  To defend against a failure to reasonably accommodate claim by an employee, the employer must prove that reasonable accommodation would constitute an undue hardship on business operations.

The Court announced that the employer showing that the employee could not perform an essential job function was not alone enough to demonstrate undue hardship because, implicit in the PWFA, is an acknowledgment by the Legislature that a temporary waiver of an essential job function by the employer does not automatically rise to the level of undue hardship.  Rather, once an employer offers proof of the pregnant employee’s inability to perform an essential job function, it is for a jury to decide based on the totality of circumstances applicable to the specific employer in question, whether an undue hardship for that employer actually existed.

Finally, the Court stated that PWFA also prohibits unlawful penalization of a pregnant employee.  This includes, but is not limited to, the employer imposing harsh conditions on a pregnant employee who requests reasonable accommodation or subjecting the pregnant employee to a hostile work environment.

As can be seen, the PWFA affords significant protections in the workplace for pregnant and breastfeeding employees.  If you believe that you have received treatment by your employer that violates the PWFA, please reach out to me to discuss the options available to you under the law.

Andrew L. Watson is a partner with Pellettieri, Rabstein & Altman, focusing his practice on employment law, labor law, ERISA and employee benefits, and commercial litigation.  For more information about Andrew please click here.

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A description of methodology
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A description of methodology
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