In one of his final acts in office, New Jersey Governor Chris Christie signed legislation to prohibit discrimination against breastfeeding employees. The bill, which was introduced by Democratic legislators and passed both houses of the Legislature unanimously, amends the New Jersey Law Against Discrimination and takes immediate effect. New Jersey employers should expect this law to affect their workplace in at least two ways.
First, the law amends the NJLAD’s enumeration of protected classes, adding the words “or breastfeeding” after “pregnancy” as a protected basis in employment. In other words, an employee’s status as a breastfeeding employee joins the ranks of protected characteristics that employers may not consider in taking adverse actions against employees and applicants. Moreover, the law provides for a broad definition, defining “breastfeeding” as including “breast feeding or expressing milk for breastfeeding . . . or medical conditions related to . . . breastfeeding.”
Second, the law requires employers to provide employees who are breastfeeding an infant child with a reasonable accommodation, which “shall include reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk.” The employer is not required to provide this specific accommodation if the employer can demonstrate that this accommodation would cause an undue hardship, and the hardship analysis requires consideration of the following factors:
[T]he overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget; the type of the employer’s operations, including the composition and structure of the employer’s workforce; the nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions, and outside funding; and the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business
necessity requirement.
Note, though, that it is the employer’s obligation to establish that an undue hardship exists. And, the employer must establish an undue burden, in light of these specific factors. It is not enough to just conclude accommodations would be burdensome without examining these specific factors.
In light of the change in the law, employers should consider whether their workplace policies, HR/accommodation request processes, and facilities are up-to-date with the newly enacted law.
Jeffrey Phillips Phoenix Attorney 