On October 1, 2020 the Tennessee Pregnant Workers Fairness Act becomes law. Passed this summer, the new law requires every employer with 15 or more employees to make a reasonable accommodation for an employee’s or prospective employee’s medical needs arising from pregnancy, childbirth, or related medical conditions. Consistent with the ADA, a reasonable accommodation does not have to be made if doing so will impose an undue hardship on business operations.
The law specifies that it is not imposing certain requirements on employers. Specifically, employers are not required to:
- create a new position for the employee, including a light duty position, unless a light duty position would be provided for another equivalent employee;
- hire new employees that would not otherwise have been hired;
- discharge an employee, transfer an employee with more seniority, or promote another employee who is not qualified to perform the new job;
- compensate an employee for more frequent or longer breaks, unless the break would otherwise be compensated;
- construct a permanent, dedicated space for expressing breast milk.
In addition to the requirement to provide a reasonable accommodation unless doing so would create an undue hardship, the Act also details the following unlawful employment practices:
- requiring an employee to take leave if another reasonable accommodation can be provided;
- taking an adverse action in the terms , conditions or privileges of employment because an employee has requested or used/received a reasonable accommodation, including, but not limited to, counting an absence related to pregnancy under a no fault attendance policy.
Significantly, the “no adverse action based on a no fault attendance policy” may be broad enough to require payment of a perfect or regular attendance bonus if the only absences are due to the reasonable accommodation.
Employers can require employees who request a reasonable accommodation of a temporary transfer to a vacant position, job restructuring, light duty, or an accommodation that requires time away from work to submit a certification from a health care provider supporting the request. However, the employer must engage in a good faith interactive process with the employee to determine if a reasonable accommodation is available while awaiting the certification.
A suit alleging the Act has been violated can be filed in Circuit or Chancery Court and must be filed within one year of the adverse employment action. Filing a charge with the THRC is not required before suit can be filed. A successful plaintiff can recover back pay, compensatory damages, prejudgment interest, reasonable attorney’s fees and other legal or equitable relief that will effectuate the purposes of the Act.
Since October 1st is fast approaching employers should review their policies to determine what changes need to be made and train their supervisors on these new requirements.