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TN Pregnant Workers Fairness Act
Effective October 1, 2020, a new law in Tennessee will provide further protections to pregnant workers. The Tennessee Pregnant Workers Fairness Act, Tenn. Code Ann. §50-10-101 through 104, places pregnancy-related reasonable accommodation obligations upon employers with 15 or more employees.
Pregnancy-related accommodations allowed under this new law include, but are not limited to:
· Making existing facilities used by employees 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;
· Modifying food or drink policy;
· 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; and
· Allowing flexible scheduling for prenatal visits.
An employer who denies a reasonable accommodation request bears the burden of demonstrating that the accommodation would impose an undue hardship, which is defined as “significant difficulty or expense.” Additionally, an employer is not required to provide certain types of pregnancy-related accommodations if those accommodations would not also be provided to non-pregnant employees. For example, an employer would not be required to hire, transfer, or promote someone who was not otherwise qualified for the job. An employer is not required to create or provide a “light duty position” unless the employer already has a policy of doing so for other employees (such as employees who have had on-the-job injuries).
The new law makes the following employment actions unlawful:
· Refusing to make pregnancy-related reasonable accommodations, unless the employer demonstrates that the accommodation would impose an undue hardship;
· Requiring an employee to take leave if another reasonable accommodation can be provided which would allow the employee to continue working;
· Taking any adverse action against an employee for requesting pregnancy-related accommodation, including counting an absence related to pregnancy under a no-fault attendance policy.
An employer may require medical certification in response to a pregnancy-related accommodation request, but only if the employer requires the same for non-pregnancy-related accommodation requests. An employee’s request for reasonable accommodation immediately triggers 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.
Anyone (job applicant or employee) who suffers a violation under this new law may file a lawsuit in either Chancery or Circuit Court. The law specifies the following remedies: back pay, compensatory damages, prejudgment interest, attorney fees, “and any legal or equitable relief that will effectuate the purpose of this chapter.”
If You Suspect You Are Being Wrongfully Terminated...
First Steps and Tips
Have you recently been terminated from a job and you think your employer may have violated the law? Do you think you are about to be fired and it just feels wrong? Oftentimes when people find themselves facing a potential or recent job loss, they are afraid and not sure what to do. Here are some practical pointers and tips about what to do (and what not to do) if you find yourself in this situation.*
- First, do not delay in getting legal advice. Certain employment issues can be resolved before they turn into lawsuits if they are given prompt attention, if the proper steps are followed, and if the correct language is used to request redress. In fact, in certain circumstances, employees can later be faulted if they did not follow the correct path or use the proper terminology at the time the issue arose. Some employers have also implemented agreements in the workplace that actually shorten the time you have to file a claim. Do not delay in reaching out to an attorney if you think you might go that route.
- Second, make sure you keep or copy all documents and communications that are important to your employment or the termination. If you do lose your job, you may no longer have access to emails you sent or received, for example. Be mindful of any workplace policies that may apply, of course. But maintain any materials that might be important while you still have access to them. Likewise, keep any cell phones that you used to communicate with your employer or any that contain evidence. Many clients who find themselves in a financial bind after a job loss are tempted to get rid of costly cell phones. Unfortunately, many items of evidence are not kept on the cloud or available through your cell phone provider and your original cell phone may be your only source of that evidence. You can also be accused of destroying evidence if you trade in an old cell phone.
- Third, do not try and “create” evidence without advice. If you send an email to your employer complaining about issues/circumstances, that email will most likely improve your legal position, but you may also unknowingly say something that harms your position. If you try and record your employer, there are similarly right and wrong (possibly illegal) ways and times to do that.
- Fourth, do not try and play lawyer. When you are ill, do you use Google to diagnose you or do you go to the doctor? You go to the doctor because they have the education and experience to identify what is wrong and treat the situation. The same holds true with legal issues.
- Finally, be careful what you say publicly, privately, and on social media about the employment situation. Anything you say could be used against you and you never know if someone who is your friend today is still going to be on your side tomorrow if you file suit against the company for whom they still work. At some point, you also may be in a position where you are negotiating a severance or settlement agreement. One item ordinarily requested by the employer is a confidentiality agreement. Do not ruin your opportunity to negotiate that item by diminishing the value of confidentiality.
Employment law is a complex area of the law and not many general practitioners actively litigate employment matters. You should not try to do so either. Find a lawyer whose practice focuses on employment law and let he or she help navigate if you find yourself on a sinking ship with your job.
*The general guidance herein is not considered legal advice and does not establish an attorney-client relationship. Each situation is unique and very fact-specific, so please consult an attorney for advice regarding your own circumstances.
