Last month, New Jersey became the ninth state to adopt formal protections for pregnancy by amending its Law Against Discrimination (the "LAD") to specifically include "pregnancy" as a protected category, to require reasonable accommodation for an "employee who is a woman affected by pregnancy," and to prohibit retaliation against an employee who requests or receives a pregnancy-related accommodation. The amendment defines "pregnancy" to encompass "childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth."

New Jersey’s judiciary has long held that disparate treatment based on pregnancy violates the LAD’s proscriptions against gender and/or disability discrimination. The addition of "pregnancy" to the list of enumerated categories protected by the LAD—thereby requiring employers to treat employees whom they "know, or should know, [are] affected by pregnancy," the same as other, non-pregnant employees with similar work abilities—should therefore not be a major change for employers.

But what may be a big change is the new LAD provision that requires employers to provide reasonable accommodation for any pregnant employee who requests one based on the recommendation of a physician(s)—even if that employee does not qualify as "disabled" under federal or state law. Examples of required reasonable accommodations include:

. . . 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.

Unpaid leave may be another form of required accommodation in some instances, though the amendment expressly states that it does not increase "any employee’s rights under law to paid or unpaid leave in connection with pregnancy."

When considering the reasonableness of a pregnant employee’s accommodation request, the LAD’s new provision instructs employers to consider whether the accommodation will have an "undue hardship" on their business operations. The amendment provides a non-exclusive list of factors to be considered, including the overall number of employees, the nature and the cost of the accommodation, and the extent to which the accommodation would involve waiving an essential job requirement, as opposed to a tangential or non-business necessary job requirement. The LAD generally does not require any accommodations that would pose undue hardship on employers’ business operations.

Finally, although the amended LAD does not require that employers provide a separate notice to employees regarding its new pregnancy provisions, we anticipate that the State’s Division on Civil Rights will update its official Anti-Discrimination in Employment poster to reference the new pregnancy protections. Once updated, this new poster should be displayed in a place easily visible to employees and applicants, as the LAD has long required for all its postings.