Posted by: Edward Phillips & Brandon Morrow on Jan 1, 2021

Journal Issue Date: Jan/Feb 2021

Journal Name: Vol. 57 No. 1

For the majority of the last year, the Tennessee General Assembly has been focused on passing legislation in response to the COVID-19 pandemic. However, one non-COVID piece of legislation was passed in June that will be sure to impact employers and employees, especially those who are pregnant or have recently welcomed a child and have returned to work.1 On June 22, 2020, Gov. Lee signed into law Public Chapter 745, known as the Tennessee Pregnant Workers Fairness Act. The PWFA has been codified at Tenn. Code Ann. § 50-10-101 et seq and took effect on Oct. 1, 2020. The PWFA requires covered employers to engage in the interactive process and evaluate reasonable accommodation requests for employees who have “medical needs arising from pregnancy, childbirth, or related medical conditions.”2

The PWFA fills a gap in existing anti-discrimination laws

Was the PWFA necessary when we have other laws on the books — like Title VII of the Civil Rights Act (via the Pregnancy Discrimination Act), the Americans with Disabilities Act and their state counterparts — that prohibit sex and disability discrimination? Proponents of this new law argued that the PWFA was necessary because pregnancy, alone, was insufficient to trigger reasonable accommodation requirements under existing laws. How does the PWFA fill gaps left open by Title VII and the ADA?

The federal Pregnancy Discrimination Act, a 1978 amendment to Title VII, only requires employers to offer reasonable accommodations to pregnant workers if it has done so for other nonpregnant employees who are “similar in their ability or inability to work.”3 The Supreme Court, in Young v. UPS, affirmed this interpretation, but held that courts must evaluate the extent to which an employer’s policy treats pregnant workers less favorably than nonpregnant workers with similar inabilities to work and determine whether there are any legitimate reasons for such differences.4 Ostensibly, then, if an employer does not provide accommodations for nonpregnant employees, the PDA would not require such accommodations for pregnant employees. 

But doesn’t the ADA cover requests for reasonable accommodations? Of course, but pregnancy is not, per se, a disability under the ADA. Some pregnancy-related impairments, like gestational diabetes and preeclampsia, may rise to the level of an ADA disability. However, if a pregnant employee’s condition does not rise to the level of a disability, there is no requirement under the ADA for an employer to provide a reasonable accommodation.

So, Tennessee’s PWFA gives pregnant workers the right to a reasonable accommodation in situations where Title VII/PDA and the ADA may not apply.

Obligations under the PWFA

Tennessee’s PWFA only applies to employers with 15 or more employees.5 Keep in mind that the PWFA’s definition of employer is more restrictive than that under the Tennessee Human Rights Act, which covers employers with eight or more employees.6 

For covered employers, the PWFA imposes three reasonable accommodation requirements. First, employers must make reasonable accommodations for medical needs arising from pregnancy, childbirth or related medical conditions unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the business of the employer.7 This requirement also applies to applicants for employment. For purposes of this requirement, undue hardship is defined as “an action requiring significant difficulty or expense.”8 Interestingly, unlike the ADA, there is no language in the PWFA that requires employees to be able to perform the essential functions of their position. Instead, the reasonable accommodation requirements are triggered if the employee has “medical needs arising from pregnancy, childbirth, or related medical conditions.”9

Second, leave from work is a last, not a first, resort. The PWFA states that employers cannot require an employee to take leave under a leave law or policy adopted by the employer if another reasonable accommodation can be provided to address the medical needs arising from the employee’s pregnancy, childbirth or related medical conditions.10 Third, the PWFA contains an anti-retaliation provision. It states that employers cannot take adverse action against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation for medical needs arising from the employee’s pregnancy, childbirth, or related medical conditions.11

Along the lines of the ADA, the PWFA provides that employers may request, in certain circumstances, employees to provide a medical certification from a healthcare professional for their requested accommodation, provided employers require the same of nonpregnant employees.12 Medical certifications may be requested if the employee is requesting a reasonable accommodation related to temporary transfer to a vacant position, job restructuring, or light duty, or an accommodation that requires time away from work. However, obtaining a medical certification does not suspend the employer’s obligation to engage in a “good faith interactive process with the employee to determine if a reasonable accommodation can be provided absent undue hardship.”13 Likewise, the anti-retaliation provision extends to the time the employee is engaged in good faith efforts to obtain the medical certification.14

Potential Reasonable Accommodations

The PWFA includes a list of potential reasonable accommodations, which include:

  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 (this conforms to the federal standard);
  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 visit.

Of course, depending on the circumstances, there may be other accommodation requests that are reasonable but that are not listed in the statute. And again, the reasonableness of each request will depend on whether it can be implemented without significant difficulty or expense on the part of the employer.

Limitations on the PWFA

  1. Although the PWFA imposes new requirements on covered employers, it includes a specific list of actions that do not qualify as reasonable accommodations. In other words, unless the employer would do the following for nonpregnant employees, it does not have to:
  2. Compensate employees with pregnancy-related medical conditions for longer or more frequent breaks;
  3. Construct a permanent, dedicated space for expressing milk;
  4. Create new positions (including light duty positions) for employees with pregnancy-related medical conditions; or
  5. Create a job opening for employees with pregnancy- related medical conditions (this would include discharging, transferring or promoting other employees).15
  6. The PWFA also states that employers are not required to hire applicants with a pregnancy-related medical condition that it would not have otherwise hired.16

New Cause of Action

With a new statute comes a new cause of action. Violations of the PWFA may be redressed in either chancery or circuit court.17 Potential damages include back pay, compensatory damages, prejudgment interest, reasonable attorney’s fees, and any other legal or equitable relief consistent with the PWFA.18 Causes of action arising under the PWFA must be brought within one year of the adverse employment action.19

Moving Forward

Now, Tennessee employers with 15 or more employees must evaluate pregnancy-related requests for accommodation in light of their responsibilities not only under the ADA, but also the PWFA. Employers should update their policies in accord with the PWFA and educate their supervisors about how to handle pregnancy-related requests for accommodation in light of the new law. Likewise, pregnant employees, and those employees who are returning to work from a pregnancy, have additional rights to reasonable accommodations in the workplace.


EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

BRANDON L. MORROW is an attorney with Kramer Rayson LLP in Knoxville. He represents businesses, educational institutions and religious institutions in employment and civil rights related matters. He holds a bachelor’s degree from the University of Tennessee and a juris doctorate from the University of Tennessee College of Law.

 

NOTES

1. Technically, Public Chapter 745 was not completely devoid of COVID-related legislation. Sections two and three of the law included amendments to Tennessee’s unemployment benefits law, in response to the federal Families First Coronavirus Response Act.
2. Tenn. Code Ann. § 50-10-103.
3. 42 U.S.C.A. § 2000e(k).
4. 575 U.S. 206 (2015).
5. Tenn. Code Ann. § 50-10-102(2).
6. Tenn. Code Ann. § 4-21-102(5).
7. Tenn. Code Ann. § 50-10-103(b)(1).
8. Tenn. Code Ann. § 50-10-102(4).
9. Tenn. Code Ann. § 50-10-103(b)(1).
10. Tenn. Code Ann. § 50-10-103(b)(2).
11. Tenn. Code Ann. § 50-10-103(b)(3).
12. Tenn. Code Ann. § 50-10-103(c).
13. Id.
14. Id.
15. Tenn. Code Ann. § 50-10-103(a).
16. Id.
17. Tenn. Code Ann. § 50-10-104.
18. Id.
19. Id.