Tennessee employers with 15 or more employees must provide reasonable accommodations to applicants and employees who have medical needs arising from pregnancy or childbirth, unless the accommodation would impose an undue hardship. Governor Lee signed the supporting legislation, the Tennessee Pregnant Workers Fairness Act, on June 22, 2020, joining more than twenty-five other states requiring such accommodations.
What Types of Accommodations Are Required Under the Tennessee Pregnant Workers Fairness Act?
The Tennessee Pregnant Workers Fairness Act lists the following examples of reasonable accommodations that employers may be required to provide:
- 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
Employers are prohibited from taking any adverse action against an applicant or employee for requesting or using a reasonable accommodation related to pregnancy or childbirth.
Must Employers Provide Leave as an Accommodation?
Employers may be wondering whether the list of accommodations set forth in the new law is a list of all accommodations available to employees and applicants under the Act. As a leave of absence administrator, we at ReedGroup certainly noticed the omission of time off from work from the list of examples.
While the legislation does not specifically state that the list is non-exhaustive, the Act prohibits disciplinary action under a no-fault attendance policy based upon absences related to pregnancy and permits medical certifications for “accommodations that require time away from work.” The law also prohibits employers from requiring employees to “take leave under a leave law or policy adopted by the employer if another reasonable accommodation can be provided” (emphasis added), suggesting leave could be a reasonable accommodation under the law.
For these reasons, employers should consider leave as an available accommodation under appropriate circumstances, and remember that the federal Americans with Disabilities Act (ADA) may also require covered employers to provide leave as an accommodation to employees who are disabled due to pregnancy-related medical conditions or childbirth.
Though the Tennessee law’s list of accommodations may be non-exhaustive, the law does provide employers with some guardrails. Employers are not required to do any of the following unless the employer does or would do so for another employee or class of employees requiring accommodation:
- Hire new employees that the employer would not have otherwise hired;
- Discharge an employee, transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job;
- Create a new position, including a light duty position for the employee, unless a light duty position would be provided for another equivalent employee;
- Compensate an employee for more frequent or longer break periods, unless the employee uses a break period that would otherwise be compensated; or
- Construct a permanent, dedicated space for expressing milk.
Can Employers Require Medical Certifications Before Providing Accommodations Under Tennessee’s Law?
Employers are permitted to require a medical certification from a healthcare professional to support an accommodation request only if the accommodation is “related to temporary transfer to a vacant position, job restructuring, [or] light duty” or is an accommodation “that require[s] time away from work.” While an employee is seeking a required medical certification, employers are prohibited from taking any adverse action against the employee and must engage in a good faith interactive process to determine if the requested accommodation – or an alternative accommodation – is reasonable and can be provided without imposing an undue hardship on the business.
What Should Employers Do?
Employers covered by the Tennessee Pregnant Workers Fairness Act should review their policies and practices governing reasonable accommodations to ensure compliance with the law’s requirements. Employers should continue to consider all accommodation requests related to pregnancy or childbirth on a case-by-case basis and engage in the required interactive process and undue hardship analysis under Tennessee’s law and/or the Americans with Disabilities Act, as applicable.
The Tennessee Department of Labor and Workforce Development has been tasked with promulgating rules that may provide additional clarity on employers’ obligations under the Tennessee Pregnant Workers Fairness Act, including any associated posting or notification requirements, so employers should be aware that rules may be updated in the future.
What is ReedGroup Doing?
Current ReedGroup clients with questions regarding how the law’s enactment has affected their leave programs should contact their Account Executives for additional information.
If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.