By Jeff Jones
Special to the UCBJ
On June 22, 2020, Gov. Bill Lee signed into law the Tennessee Pregnant Workers Fairness Act, which went into effect on Oct. 1, 2020. This new law is very similar to the Federal Pregnant Workers Fairness Act bill introduced in the U.S. House of Representatives in the Spring of 2020.
Under this new state law, all employers having fifteen (15) or more employees are required to provide reasonable accommodations to applicants and employees for medical needs arising from pregnancy, childbirth, or related conditions, unless such accommodation would impose an undue hardship on the employer. Undue hardship is defined as “an action requiring significant difficulty or expense.”
The Act lists the following as possible reasonable accommodations that may be provided:
- Making existing facilities used by employees readily accessible and usable;
- Providing more frequent, longer, or flexible breaks;
- Providing a private place, other than a bathroom stall, for the purpose of expressing milk;
- Modifying food or drink policy;
- Providing modified seating or allowing the employee to sit more frequently if the job requires standing;
- Providing assistance with manual labor and limits on lifting;
- Authorizing a temporary transfer to a vacant position;
- Providing job restructuring or light duty, if available;
- Acquiring or modifying of equipment, devices, or an employee’s workstation;
- Modifying work schedules; and
- Allowing flexible scheduling for prenatal visits.
This new Tennessee law does not provide any protections greater than those afforded to other employees needing accommodation, as it states that the following actions are not required unless the employer does or would do so for another employee or a class of employees that need a reasonable accommodation:
- Hire new employees that the employer would not have otherwise hired;
- Discharge an employee, transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job;
- Create a new position, including a light duty position for the employee, unless a light duty position would be provided for another equivalent employee;
- Compensate an employee for more frequent or longer break periods, unless the employee uses a break period that would otherwise be compensated; or
- Construct a permanent, dedicated space for expressing milk.
Under the Tennessee Pregnant Workers Fairness Act, employers are also prohibited from requiring pregnant workers to take leave if a reasonable accommodation can be provided which would enable them to continue working. In addition, employers are prohibited from taking adverse action against employees for requesting or using a reasonable accommodation related to pregnancy, childbirth, or related medical conditions. Employers are specifically prohibited from counting an absence related to pregnancy under no fault attendance policies.
Employers may require pregnant employees to provide medical certification to support the request for accommodation, if the employer requires other employees seeking accommodation to provide medical documentation. The Act states that during the time period that an employee is attempting to obtain medical certification, the employer must engage in a good faith interactive process with the employee to determine if a reasonable accommodation can be provided absent undue hardship. Employers are also prohibited from taking adverse action against the employee related to the employee’s need for accommodation while the employee is engaging in good faith efforts to obtain medical certification.
Any person alleging a violation of this new law may file suit directly in chancery or circuit court for the county in which the alleged violation occurred, or an action in Davidson County pursuant to the Uniform Administrative Procedures Act, within one year of the date of the adverse employment action. Possible relief includes back pay, compensatory damages, prejudgment interest, reasonable attorney’s fees, and any other appropriate legal or equitable relief.
The requirements of this new Tennessee state law are very similar to existing Federal law requirements. Most Tennessee employers are subject to the Federal Pregnancy Discrimination Act, which makes it illegal for an employer with 15 or more employees to discriminate against pregnant workers.
The 2008 Americans with Disabilities Act Amendments Act, also applicable to employers with 15 or more employees, expanded the scope of the ADA to require employers to provide necessary accommodations to pregnant employees with pregnancy-related conditions that meet the definition of disability.
In addition, the Affordable Care Act amended the Fair Labor Standards Act (FLSA) in 2010 to require employers to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “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.” These provisions apply to all employers subject to the FLSA.
Employers may also recall that the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance in 2014 regarding the rights of pregnant workers. Under that guidance, the EEOC clarified that employers must treat women affected by pregnancy or related medical conditions in the same way that they treat other employees who are similar in their ability or inability to work. For example, if an employer provides workplace accommodations, such as disability leave or light duty assignments, to employees who have non-pregnancy related work limitations, the employer must offer those same accommodations to pregnant employees. In 2015, the U.S. Supreme Court affirmed these employer obligations in the case of Young v. UPS.
What should employers do in response to this new Tennessee Law? Prudent Tennessee employers should review and revise their policies and practices regarding hiring, accommodation, and leave to include provisions in compliance with the Tennessee Pregnant Workers Fairness Act. In addition, training is essential so that management and Human Resource professionals are fully versed regarding compliance and responsibilities under this new state law as well as existing federal laws. It is anticipated that the Tennessee Commissioner of Labor will promulgate rules to effectuate this law soon, which should provide further clarification on employer obligations under this new law.