New Jersey Employment Law Protections for Pregnant Employees
New Jersey employment law, as well as Federal employment law, prohibits discrimination against employees because of pregnancy, requires employees to reasonably accommodate employees’ pregnancy, bars retaliation against employees who request accommodations for pregnancy or object to the treatment of pregnant employees, and bars coercion of pregnant employees from being required to accept unreasonable or no accommodations or take leave unless medically necessary.
Under New Jersey employment law, the primary statutory protection for pregnant employees is the New Jersey Law Against Discrimination. The main provision of the Law Against Discrimination protecting pregnant employees is N.J.S.A. 10:5-12. This provision makes it illegal “For an employer, because of… pregnancy or breastfeeding… to refuse to hire or employ or to bar or to discharge from employment or to discriminate against an individual in compensation or in the terms, conditions or provisions of employment.” This has been held to also bar harassing an employee because of protected traits, such as pregnancy. These provisions also apply to unions and employment agencies.
The New Jersey Law Against Discrimination also makes it illegal:
For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has sought legal advice regarding rights under this act, shared relevant information with legal counsel, shared information with a governmental entity, or filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.
Additionally, the Law Against Discrimination requires that employers make reasonable accommodations when requested by pregnant employees, and prohibits retaliation against the employee if she does request such accomodation. It provides:
In addition, an employer of an employee who is a woman affected by pregnancy shall make available to the employee reasonable accommodation in the workplace, 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, for needs related to the pregnancy when the employee, based on the advice of her physician, requests the accommodation…. The employer shall not in any way penalize the employee in terms, conditions or privileges of employment for requesting or using the accommodation.
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[I]n determining whether an accommodation would impose undue hardship on the operation of an employer’s business, the factors to be considered include: the overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget; the type of the employer’s operations, including the composition and structure of the employer’s workforce; the nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions, and outside funding; and the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.
Federal employment law governing New Jersey employers and employees offers similar protections. For instance, the Federal Pregnant Workers Fairness Act also requires employers to make reasonable accommodations for pregnant workers upon request, and prohibits harassment, retaliation, and mandatory leave. Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of sex,” which it defines to include “pregnancy, childbirth, or related medical conditions”.
New Jersey Employment Law Protections for Breastfeeding Employees
New Jersey employment law and federal law also provide protections for employees who are breastfeeding. The Law Against Discrimination requires that employers must provide reasonable accommodations for nursing mothers. It requires that for employees who are:
breast feeding her infant child, the accommodation shall include reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk for the child, unless the employer can demonstrate that providing the accommodation would be an undue hardship on the business operations of the employer.
The same undue hardship analysis and protections against retaliation apply.
Federal law provides similar protections. In December 2022, the Federal Fair Labor Standards Act, which generally regulates minimum wage and overtime, was amended by the PUMP for Nursing Mothers Act (known as the “PUMP Act”) to require that employers provide accommodations for breastfeeding employees (with exceptions for some small employers and air carriers).
29 U.S. Code § 218d – Breastfeeding accommodations in the workplace.
(a)In general. An employer shall provide—
(1) a reasonable break time for an employee to express breast milk for such employee’s nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and
(2) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
(1)In general. Subject to paragraph (2), an employer shall not be required to compensate an employee receiving reasonable break time under subsection (a)(1) for any time spent during the workday for such purpose unless otherwise required by Federal or State law or municipal ordinance.
(2)Relief from duties. Break time provided under subsection (a)(1) shall be considered hours worked if the employee is not completely relieved from duty during the entirety of such break.
This is an expansion of the protections already afforded by the Federal Affordable Care Act (also known as “Obamacare”), which required employers with over 50 employees to reasonably accommodate breastfeeding employees.
New Jersey Versus Federal Employment Law as the Means for Relief
The New Jersey Law Against Discrimination has a longer statute of limitations and less procedural hurdles than the Federal laws for filing lawsuits in which pregnant or breastfeeding employees allege that their employers have discriminated against them such as by firing them or making them take leave, or refusing to accommodate them. New Jersey courts have also interpreted the Law Against Discrimination much more liberally in favor of employees than Federal courts. For this reason employees seeking relief generally prefer to sue in New Jersey state courts, while employers generally seek to have the cases heard in Federal courts (or arbitration).
Our New Jersey employment attorneys represent employers and employees in all aspects of New Jersey employment law, including litigation and negotiations over pregnancy discrimination and failure to accommodate pregnant or breastfeeding employees. Fill out the contact form on this page or call (973) 890-0004 to schedule a consultation with one of our New Jersey employment lawyers. We can help.