This post comes from my very own filing cabinets and involves an employer’s policy to only offer light duty to employees who have suffered a worker’s compensation injury.
According to AtlantiCare’s website, it is one of our region’s largest healthcare organizations and employs over 5,100 employees at roughly 70 different healthcare locations. AtlantiCare holds itself out as being an employer of “inclusion” with a “commitment to diversity.” However, their website fails to advise that AtlantiCare’s policy of “inclusion” specifically excludes pregnant employees.
Ms. Bigwood had been employed as an EMT with AtlantiCare for roughly three years. In or about June 2016, Ms. Bigwood advised AtlantiCare that she was pregnant. She also advised that she required a light duty accommodation as she could no longer lift heavy patients and perform some of the other physical demands of her position. Ms. Bigwood provided a doctor’s note and requested to be placed in the Medcom department. Ms. Bigwood requested Medcom as she knew of other EMT’s who had been reassigned to Medcom when they required a light duty accommodation.
AltantiCare refused to provide Ms. Bigwood with the requested light duty accommodation. In doing so, AtlantiCare told Ms. Bigwood that AtlantiCare’s policy was to only provide light duty accommodations to employees who suffered a worker’s compensation injury but not employees who “get pregnant.” AtlantiCare then forced Ms. Bigwood to go out on disability and exhaust her FMLA leave, despite the fact that she was not disabled and was able and willing to work. Because AtlantiCare forced Ms. Bigwood to take an unnecessary FMLA leave, her leave of absence expired roughly two weeks prior to her due date, at which time AtlantiCare terminated her.
As an employment attorney who has been practicing for roughly eight years, I am seldom surprised by the unlawful actions taken by an employer. In fact, this is not the first time I have heard that a misguided employer believed it only had to offer light duty accommodations to employees who suffered a worker’s compensation injury. For some reason, this one surprised me. I find it troubling that such a large employer, one with significant financial resources and legal counsel available to it, would officially, or even unofficially, enact such a facially discriminatory policy.
This week, a complaint was filed on behalf of Ms. Bigwood alleging that AtlantiCare’s policy of providing light duty accommodation only to employees who suffer a worker’s compensation injury is a violation of the NJLAD. In addition to the various NJLAD claims (failure to reasonably accommodate, discrimination due to gender and pregnancy, and unlawful termination), Ms. Bigwood has also alleged that AtlantiCare interfered with her right to bonding leave under the NJFLA. She has alleged that AtlantiCare intentionally forced her to take the unnecessary FMLA leave with the intent that it would expire prior to her delivering her child, preventing her from qualifying for job-protected leave under the NJFLA.
Sadly, Ms. Bigwood’s story is one all too common to pregnant employees. I have counseled countless employees who are terrified of disclosing their pregnancy to their employer as they are fearful of losing their jobs at a time when they so desperately need their income and health benefits. This puts both the health of the employee and her baby at risk as these employees commonly continue to try to perform their full duty job duties despite contraindications. This is unacceptable and must stop. Women should not have to choose between starting a family and having a career.