There is a new law for Tennessee employers. As of October 1, 2020, those of you with employees in Tennessee must reasonably accommodate pregnant employees under the state’s new “Pregnant Workers Fairness Act” or else face potential civil liability.

New Obligations and Cause of Action

Under the act, which applies to employers with 15 or more employees, businesses are prohibited from:

• Refusing to make reasonable accommodations for “medical needs arising from pregnancy, childbirth, or related medical conditions” for applicants or employees, unless it would cause an undue hardship (defined as an action requiring “significant difficulty or expense”);
• Requiring an employee to take leave “if another reasonable accommodation can be provided” to accommodate the pregnant employee’s medical needs arising from the pregnancy, childbirth, or related medical conditions; and
• Taking adverse action against an employee for requesting or using a reasonable accommodation related to pregnancy, including “counting an absence related to pregnancy under no fault attendance policies.”

The act creates a new cause of action against Tennessee employers, and a successful plaintiff may recover back wages, non-economic damages such as emotional distress, prejudgment interest, reasonable attorneys’ fees, and “any legal or equitable relief that will effectuate the purpose” of the Pregnant Workers Fairness Act. The Tennessee Department of Labor and Workforce Development can also enforce the act.

How Is This Different from Title VII and the ADA?

The act has some significant differences from two related federal laws. Title VII of the Civil Rights Act (Title VII) and the Americans with Disabilities Act (ADA) also apply to employers with 15 or more employees. Although Title VII, via  the federal Pregnancy Discrimination Act (PDA) prohibits employers from discriminating against pregnant employees, the Pregnant Workers Fairness Act imposes a reasonable accommodation requirement on employers that the PDA arguably does not.

Furthermore, the ADA does not consider a normal pregnancy to be a qualifying disability. Under the Pregnant Workers Fairness Act, the employee or applicant does not have to have a disability to be entitled to a reasonable accommodation. Also, there is no language in the act that requires an employee to be able to perform the “essential functions” of her position with the accommodation to be entitled to it. Rather, the employee or applicant must only have “medical needs arising from pregnancy, childbirth, or related medical conditions” to potentially be entitled to a reasonable accommodation, examples of which are provided below.

Medical Certifications and Interactive Processes

There are some ways for employers to check the veracity of the employee’s claim. An employer can request a medical certification from a healthcare provider if the pregnant employee is seeking a temporary transfer to a vacant position, job restructuring, light duty, or an accommodation that requires the employee time off from work. You can ask for the medical certification only if you ask employees with other medical conditions for certifications —so make sure you are treating everyone similarly. Also, while the employee is trying to obtain a medical certification, the new act requires employers to engage in a “good faith interactive process” to determine if a reasonable accommodation can be provided absent an undue hardship. Not surprisingly, you cannot take adverse action against the employee during the interactive process.

Suggested Reasonable Accommodations

The Pregnant Workers Fairness Act provides examples of what could constitute a reasonable accommodation for a pregnancy-related medical condition, including:

• Making existing facilities 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 (which is, by the way, already covered in the federal law);
• Modifying food or drink policy (i.e., maybe allowing the pregnant employee to eat at her work station);
• 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 work station;
• Modifying work schedules; or
• Allowing flexible scheduling for prenatal visits.

So What Doesn’t the Act Require?

Now that you know what the act requires, here are a few things it specifically does not require:

• You do not have to construct a permanent, dedicated space for expressing milk. As noted above, the act follows the federal law that you have to provide a private space other than a bathroom.
• You do not have to compensate employees with pregnancy-related medical conditions for longer or more frequent breaks, unless you do so for other employees.
• You do not have to create new positions (including new light duty positions) for employees with pregnancy-related medical conditions unless you provide light duty positions for other employees.
• You do not have to create a job opening for the pregnant worker by discharging, transferring, or promoting another employee, and employers are not required to hire pregnant applicants unless they otherwise would have.

Takeaway

As a result of this new law, covered employers in Tennessee must not only consider the ADA when evaluating a reasonable accommodation issue for a pregnancy-related condition but must also evaluate whether the Tennessee Pregnant Workers Fairness Act requires the employer to make a reasonable accommodation for the pregnant employee. As this is new, make sure your supervisors understand their obligations.