Legal Update

LEGAL UPDATE By: Dacey Romberg

UCOR, Associate General Counsel

TENNESSEE’S PREGNANT WORKERS FAIRNESS ACT

Last summer the Tennessee legislature passed new protections for employees who are pregnant, recovering from childbirth, or needing to express breast milk at work. The Tennessee Pregnant Workers Fairness Act (PWFA) was signed into law on June 22, 2020, and became effective on October 1, 2020.1 Tennessee now joins thirty states—including neighboring Kentucky, Virginia, North Carolina, and South Carolina—and five localities with similar protections for pregnant workers.2

The law requires every employer with at least fifteen employees to make reasonable accommodations for an employee’s or prospective employee’s medical needs arising from pregnancy, childbirth, or related medical conditions, unless such accommodation would impose an undue hardship on business operations.3 Undue hardship exists when an accommodation would require “significant difficulty or expense”—mirroring the definition of undue hardship under the Americans with Disabilities Act (ADA).4

Unlike the ADA though, employees do not have to be able to perform the essential functions of their job to be protected by the PWFA. The PWFA provides a list of potential accommodations: 1. Making existing facilities used by employees readily accessible and usable;

2. Providing more frequent, longer, or flexible breaks;

3. Providing a private place, other than a bathroom stall, for the purpose of expressing milk;

4. Modifying food or drink policy;

5. Providing modified seating or allowing the employee to sit more frequently if the job requires standing;

6. Providing assistance with manual labor and limits on lifting;

7. Authorizing a temporary transfer to a vacant position;

8. Providing job restructuring or light duty, if available;

9. Acquiring or modifying equipment, devices, or an employee’s workstation;

10. Modifying work schedules; and

11. Allowing flexible scheduling for prenatal doctors’ appointments.5

Employers should engage in a good faith interactive process as soon as the employee asks for an accommodation. However, an employer can request medical certification from a treating physician or medical provider if the employer does so for other employees needing accommodations i.e. employers should not have stricter processes for pregnancy- or childbirth-related accommodations than for accommodations related to other disabilities.6 Additionally, employers may not take adverse action against pregnant workers who request or use reasonable accommodations.7

The PWFA does include a list of actions covered employers do not have to take if the employer would not provide these items for non-pregnant employees: 1. Hire new employees that the employer would not have otherwise hired;

2. Discharge an employee, transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job;

3. Create a new position, including a light duty position for the pregnant employee, unless a light duty position would be provided for another equivalent employee;

4. Compensate the pregnant employee for more frequent or longer break periods, unless the pregnant employee uses a break period that would usually be compensated; or

5. Build or create a permanent, dedicated space for expressing milk.8

Employers should be aware that Section 7 of the Fair Labor Standards Act does require covered employers to provide a place, other than a bathroom, that is shielded from view and free from intrusion in which the employee can take reasonable breaks to express milk for one year after the birth of the employee’s child.9

The Tennessee Commissioner of Labor and Workforce Development will issue regulations and enforce the new law.10 Claimants can file suit in chancery or circuit court and seek back pay, compensatory damages, prejudgment interest, and attorneys’ fees.11 Claimants have only one year from the date of termination or adverse action to file a claim.12 The PWFA fills a gap in federal workplace laws. First, the Pregnancy Discrimination Act, a 1978 amendment to Title VII of the Civil Rights Act of 1964, prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions.13 However, this requires employers to offer reasonable accommodations to pregnant workers only if the employer has offered accommodations for non-pregnant workers who are similarly able or unable to work.

Second, the Americans with Disabilities Act may not mandate accommodations for all pregnant employees. The ADA only requires employers to accommodate those with a disability, defined as a physical or mental impairment that substantially limits one or more major life activities.14 While some pregnancy-related conditions like anemia, depression, gestational diabetes, preeclampsia, or sciatica may constitute a disability, employees with complication-free pregnancies would not be covered by the ADA.

Employers and their counsel should make changes to existing policies and procedures to comply with the PWFA and watch for developing case law under the new statute.

1 Tenn. Code Ann. § 50-10-101. 2 https://www.abetterbalance.org/resources/pregnant-worker-fairness-legislativesuccesses/. 3 Tenn. Code Ann. § 50-10-102 & 103. 4 Tenn. Code Ann. § 50-10-102(4), compare 42 U.S.C. § 12111(10)(A). 5 Tenn. Code Ann. § 50-10-102(3). 6 Tenn. Code Ann. § 50-10-103(c). 7 Tenn. Code Ann. § 50-10-103(b)(3). 8 Tenn. Code Ann. § 50-10-103(a)(1)-(5). 9 29 U.S.C. § 207(r). 10 Tenn. Code Ann. § 50-10-104(a). 11 Tenn. Code Ann. § 50-10-104(b). 12 Tenn. Code Ann. § 50-10-104(c). 13 42 U.S.C. § 2000e(k). 14 42 U.S.C. § 12102(1)(A).