New Tennessee Pregnancy Accommodation Law Effective October 1

Miller & Martin PLLC Alerts | September 30, 2020

Author: Stacie Caraway

There Is a New Pregnancy Accommodation Law in Tennessee

With all of the recent focus on COVID-19, many employers may have missed an important new development in Tennessee law, which goes into effect October 1, 2020.  Specifically, in the midst of all of the Executive Orders relating to COVID-19, Governor Bill Lee also found time back in June to sign the “Tennessee Pregnant Workers Fairness Act” into law.

This new law expands protections for pregnant applicants and employees beyond that of the federal “Pregnancy Discrimination Act” (PDA) to an “Americans with Disabilities Act” (ADA) level.

The difference this makes for employers is that the “pregnancy accommodation” standard in Tennessee used to be “just do not treat pregnant employees ANY WORSE than anyone else,” similar to a workers’ compensation standard.

Starting October 1, however, the new standard will be that all Tennessee employers with 15 or more employees will have to engage in the interactive process in order to determine reasonable accommodations with pregnant employees, similar to an ADA/disabled employee standard/process.

The new law includes a non-exclusive list of possible “reasonable accommodations,” which reads much like an ADA list: 

(A) Making existing facilities used by employees readily accessible and usable;

(B) Providing more frequent, longer, or flexible breaks;

(C) Providing a private place, other than a bathroom stall, for the purpose of expressing milk;

(D) Modifying food or drink policies;

(E) Providing modified seating or allowing the employee to sit more frequently if the job requires standing;

(F) Providing assistance with manual labor and limits on lifting;

(G) Authorizing a temporary transfer to a vacant position;

(H) Providing job restructuring or light duty, if available;

(I) Acquiring or modifying of equipment, devices, or an employee's workstation;

(J) Modifying work schedules; and

(K) Allowing flexible scheduling for prenatal visits.

An “accommodation” employers may find particularly challenging is described in another “employer prohibitions” section of the new law. Tennessee employers now are expressly prohibited from “taking adverse action against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation to the known limitations for medical needs arising from the employee's pregnancy, childbirth, or related medical conditions, including, but not limited to, counting an absence related to pregnancy under no fault attendance policies.”

As under the ADA, Tennessee employers will be able to deny pregnancy accommodations that cause an undue hardship on their operations. The “undue hardship standard” under the new law is not defined beyond “an action requiring significant difficulty or expense.” But, for now, it would be safe to assume this standard will be interpreted by Tennessee courts the same as under the ADA, which is not an easy one for most employers to meet.

The new law also contains a short list of acts, which are not required by Tennessee employers, unless the employer does or would do so for another employee or a class of employees that need a reasonable accommodation:

  1. Hire new employees that the employer would not otherwise have hired;
  2. Discharge an employee, transfer another employee with more seniority, or promote an employee who is not qualified to perform the new job;
  3. Create a new position, including a light duty position, for the employee, unless a light duty position would be provided for another equivalent employee;
  4. Compensate an employee for more frequent or longer break periods, unless the employee uses a break period that otherwise would be compensated; or
  5. Construct a permanent, dedicated space for expressing milk.

A couple of reminders here: 

  1. On the issue of breaks, there is both a Tennessee and a federal nursing/milk expression break law that applies to all employers – so do not forget about these laws regarding items 4 and 5 above – as although employers are not required to construct permanent nursing/milk expression areas under either of these laws, they are required to provide such areas, which must be private and “not a bathroom” as needed by employees.
  2. Also, for those employers who do “create” “made-up” “light-duty work/jobs” for employees who are injured on the job or others, item 3 above is going to require you to do so for pregnant workers who bring in medical restriction notes as well, starting October 1.

Along with “failing or refusing to make reasonable accommodations for medical needs arising from pregnancy, childbirth, or related medical conditions of an applicant for employment or an employee, unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the business of the employer,” the new law also prohibits Tennessee employers from “requiring an employee to take leave under a leave law or policy adopted by the employer if another reasonable accommodation can be provided to the known limitations for medical needs arising from the employee's pregnancy, childbirth, or related medical conditions.”

The new law also provides that:

An employer may, if this is required of other employees with medical conditions, request that an employee with a medical need relating to pregnancy, childbirth, or related medical conditions provide medical certification from a healthcare professional 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. During the time period in which an employee is making good faith efforts to obtain medical certification, an employer must begin engaging in a good faith interactive process with the employee to determine if a reasonable accommodation can be provided absent undue hardship. An employer shall not take adverse action against an employee related to the employee's need for accommodation while the employee is engaging in good faith efforts to obtain medical certification.

Claims for violation of the new law can be brought in either chancery or circuit court in the jurisdiction where the alleged violation occurred within one year of the violation. In the legal claim/lawsuit, a court may award back pay, compensatory damages, prejudgment interest, reasonable attorneys’ fees, and any other legal or equitable relief which is necessary to effect the purposes of this new law. Additional regulations also may be issued regarding the ability to bring an administrative claim under Tennessee’s Uniform Administrative Procedures Act rather than filing a lawsuit.

As always, please feel free to contact Stacie Caraway or any other member of our Labor & Employment Law Practice Group should you have any further questions about this alert.

For now, some practical steps to take are to make a note to expressly include the mention of “pregnancy accommodation” along with “disability” and “religious” accommodations in your employee handbook and to let your supervisors – and anyone else who is responsible for enforcing your attendance policies – know about this new law.