Tag Archives: pregnancy

NEW GUIDANCE: Washington State Attorney General Publishes New Guide on Pregnancy Accommodations

The Washington State Attorney General recently published a Guide (“Pregnant Workers’ Accommodation Rights”) which outlines pregnant employees’ civil rights under the Washington Healthy Starts Act.

As a refresher, the Washington Healthy Starts Act requires Washington employers with at least 15 employees in Washington state provide accommodations to pregnant employee, regardless of a pregnancy disability.  Among the accommodations to be provided include, but are not limited to:

  • Providing more frequent, longer, or flexible restroom breaks;
  • Modifying a no food or drink policy;
  • (Job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment, devices, or an employee’s workstation;
  • Providing seating or allowing the employee to sit more frequently if her job requires her to stand;
  • Providing for a temporary transfer to a less strenuous or less hazardous position;
  • Providing assistance with manual labor and limits on lifting;
  • Scheduling flexibility for prenatal visits; and
  • Any further pregnancy accommodation an employee may request, and to which an employer must give reasonable consideration in consultation with information provided on pregnancy accommodation by the department of labor and industries or the attending health care provider of the employee.

Continue reading NEW GUIDANCE: Washington State Attorney General Publishes New Guide on Pregnancy Accommodations

NEW CASE: Federal Court Finds Pregnancy Discrimination Act Protects Breastfeeding

In a recent decision (Hicks v. City of Tuscaloosa), the U.S. Court of Appeals for the Eleventh Circuit recently found that the Pregnancy Discrimination Act (PDA) bars discrimination not only on the basis of pregnancy, but also on the basis of pregnancy-related physiological conditions such as breastfeeding.

The Case

In this case, the plaintiff was a female police officer who had returned from maternity leave.  Upon her return, the officer requested an alternative duty because her doctor informed her that wearing the required bulletproof vest could cause infection and prevent her from breastfeeding.  The officer had requested to be assigned to a position where wearing a bulletproof vest was not required and the employer refused.  As a result, the officer resigned and filed a lawsuit.

The Holding

The court held that the employer’s refusal to accommodate this employee constituted discrimination under the PDA.  In making this decision, the Court likened the officer’s situation to that of the employee in Young v. United Parcel Service, Inc. (where the U.S. Supreme Court held the PDA bars employers from refusing to accommodate pregnant employees when they provide accommodations for similarly situated employees who are not pregnant.)  Here, the officer was able to show that her employer had provided alternative duties to employees with temporary injuries.  As a result, the Court held the employer’s failure to provide the officer with an alternative duty constituted pregnancy discrimination.

Take Home for Employers

The key for employers to remember here is that the Pregnancy Discrimination Act is more expansive than one might initially assume.  Specifically, even if an employee’s pregnancy (or pregnancy-related condition) does not amount to a disability under the Americans with Disabilities Act, the employer still might be required to provide the employee with an accommodation under the PDA.

NOTE:  There are also many state laws that provide protections for pregnant employees.  Before refusing accommodation to a pregnant employee and/or taking any adverse action against that employee, be sure to review the laws in your state.

NEW LAW — Massachusetts Pregnant Workers Fairness Act

On July 27, 2017, Massachusetts Governor Charlie Baker signed the Massachusetts Pregnant Workers Fairness Act (House Bill 3680) into law.  Under the law, Massachusetts employers with 6 or more employees will be required to provide reasonable accommodations to employees for pregnancy and related conditions (including lactation, or the need to express breast milk for a nursing child).  This new law goes into effect on April 1, 2018.

Most importantly, the new law specifically adds “pregnancy or a condition related to said pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child” to the list of protected classes under the Massachusetts Fair Employment Practices Law.

Under the law, it will be unlawful for an employer to deny a pregnant (or nursing) employee’s request for reasonable accommodation unless the employer can prove that providing an accommodation will cause the employer an undue hardship (an action requiring significant difficulty or expense).

“Reasonable accommodation” may include, but are not limited to:

  • providing more frequent or longer paid or unpaid breaks;
  • providing time off to recover from childbirth with or without pay;
  • acquisition or modification of equipment or seating;
  • temporary transfer to a less strenuous or hazardous position;
  • job restructuring;
  • light duty;
  • private non-bathroom space for expressing breast milk;
  • assistance with manual labor; or
  • allowing the employee to work a modified work schedule.

Employers are required to engage in a timely, good faith and interactive process with the employee to determine effective reasonable accommodations that will enable the employee to perform the essential functions of the job.  For most accommodations, the employer may require the employee provide documentation from a health care professional about the need for a reasonable accommodation; however, documentation cannot be required for:

  • more frequent restroom, food and water breaks;
  • seating; and
  • limits on lifting over 20 pounds.

In addition, under the new law, it is unlawful for an employer to:

  • take adverse action against an employee who requests or uses a reasonable accommodation
  • deny an employment opportunity to an employee, if such denial is based on the need of the employer to make a reasonable accommodation relating to a known pregnancy;
  • require an employee affected by pregnancy to accept an accommodation that such employee chooses not to accept, if such an accommodation is unnecessary to enable the employee to perform the essential functions of the job;
  • require an employee to take leave of absence if another reasonable accommodation may be provided without undue hardship to the employer;
  • knowingly refuse to hire a person who is pregnant because of the pregnancy or pregnancy-related condition.

Notice Requirements

Employers must provide employees with written notice of the Act.  This written notice must outline the employee’s right to reasonable accommodations for pregnancy and related conditions.  The written notice must be provided to employees as follows:

  • new employees at time of hire;
  • existing employees by April 1, 2018; and
  • any employee notifying the employer of her pregnancy within 10 days of the date a pregnant employee informs the employer of her pregnancy.

Take Home for Employers

While the new law does not go into effect until April 1, 2018, Massachusetts employers should start reviewing their employee handbooks and make any necessary revisions to their policies relating to pregnancy and providing reasonable accommodation.  In addition, employers should start training their managers about the requirements of the new law.

What Not to Do When Your Job Applicant is Expecting

It is very important for prospective employers to tread carefully when they learn an applicant is pregnant. Brown & Brown of Florida, learned an expensive lesson on pregnancy discrimination and recently settled a legal claim (EEOC v. Brown & Brown of Florida, Inc.) related to this issue.

The Case

The plaintiff, Nicole Purcell applied for an entry-level position at brokerage firm of Brown & Brown in Daytona, Florida. She was shortlisted for the position after multiple rounds of interviews. The company gave her an offer of employment. Once the plaintiff received the offer, she contacted the company’s Employee Services Coordinator to accept and asked the coordinator about maternity benefits, while announcing that she is pregnant.

About 30 minutes after the call, the coordinator sent the plaintiff an email rescinding the job offer citing that the company needed somebody in the position “long term.”

The plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC in turn filed a federal lawsuit on her behalf against Brown & Brown. This lawsuit was later settled for $100,000 – quite a hefty price tag for what amounts to 30 minutes of employment.

Takeaways for Employers

Had the company engaged in an interactive conversation with the applicant regarding any limitations she might have developed related to her pregnancy, and whether any potential limitations existed affecting her ability to do her job that could be accommodated, it is possible that much that followed could have been avoided.

Here are some DOs-and- DON’Ts that might be helpful for employers faced with a similar situation.

  1. Don’t assume that a pregnant applicant (or employee) is unable to do a job or will be absent for an extended period of time.
  2. Do engage in the interactive process with the pregnant employee (or applicant) and discuss any limitations she might have performing essential job functions because of her pregnancy and what accommodations can be made.
  3. Do document all discussions with pregnant employees (or applicants) relating to the interactive process and possible accommodations.
  4. Do assure the pregnant employee (or applicant) that the company complies with all federal and state laws regarding pregnancy leaves.
  5. Don’t renege an offer of employment (or terminate an existing employee) because the individual is pregnant.

NEW LAW – Vermont to Require Accommodations for Pregnant Employees

Vermont Governor Phil Scott recently signed Vermont House Bill 136. This new law amends the Vermont Fair Employment Practices Act by expanding the protections for pregnant employees.

This new law requires Vermont employers to provide accommodations for individuals suffering from pregnancy–related conditions. Under the law, a “pregnancy–related condition” is defined as a limitation of an employee’s ability to perform the functions of a job caused by pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

While the new law does not provide examples of what constitutes a reasonable accommodation, possible reasonable accommodations that an that the employer may be required to provide include, but are not limited to:

  • Restroom breaks,
  • Permission to carry a water bottle,
  • Breaks for increased water intake
  • Periodic rest,
  • Assistance with manual labor,
  • Job restructuring,
  • A modified work schedule, or
  • A temporary transfer to work that is less physically demanding or hazardous.

In addition, the law does not require employers to provide pregnancy disability leave. However, employers are required to provide reasonable accommodations to female employees (or applicants) who have a pregnancy-related disability.   A leave of absence may be a reasonable accommodation for a pregnancy-related disability.

Finally, employers will be required to post notice of the provisions of the law in a form provided by the Vermont Commissioner of the Department of Labor in a place conspicuous to employees at the employer’s place of business. This notice has not yet been developed.

The new law goes into effect on January 1, 2018. It is recommended that employers review their policies and procedures relating to pregnant employees and update those policies/procedures as necessary to comply with the new law. In addition, employers must be prepared to post the new notice starting January 1st.

NEW LAW – Nevada Pregnant Workers’ Fairness Act

On June 2, 2017, Nevada Governor Brian Sandoval signed Senate Bill No. 253 (the Nevada Pregnant Workers’ Fairness Act) into law. The new law amends the Nevada Fair Employment Practices Act and greatly expands the legal protections afforded to pregnant employees in Nevada. The Nevada Pregnant Workers’ Fairness Act applies to employers with 15 or more employees goes into effect on October 1, 2017

Current Protections for Pregnant Employees

Under Nevada’s current law, pregnancy is considered a protected class and it is unlawful for an employer to discriminate against a pregnant employee because of her pregnancy. In addition, employers are required to provide pregnant employees the same benefits provided to other employees due to sickness or disability related to a medical condition.

Expanded Protections

Under the Nevada Pregnant Workers’ Fairness Act, it an unlawful employment practice to:

  • Refuse to provide a reasonable accommodation to a female employee or applicant for a condition relating to pregnancy, childbirth or a related medical condition.
  • Take adverse action against, or deny an employment opportunity to, an otherwise qualified female employee or applicant due to a request for, or use of, a reasonable accommodation.

A “condition relating to pregnancy, childbirth or a related medical condition” includes a “physical or mental condition intrinsic to pregnancy or childbirth” — specifically including lactation and the need to express milk for a nursing child

A “related medical condition” includes “any medically recognized physical or mental condition related to the pregnancy, childbirth or recovery” — specifically including mastitis or other lactation-related medical condition, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, and the loss or end of pregnancy and the subsequent recovery.

In addition, when a female employee or applicant “requests an accommodation” for a protected condition employers are required to engage in a “good faith and interactive process” with the employee to determine an effective and reasonable accommodation.  During this interactive process, an employer is permitted to require the employee to provide a statement from the employee’s physician concerning the specific accommodation recommended.

Examples of some possible reasonable accommodations include:

  • modifying equipment,
  • revising break schedules,
  • providing space other than restrooms for the expressing of milk
  • assistance with manual labor (if manual labor is incidental to the employee’s primary work duties),
  • light duty,
  • temporary transfer to less strenuous or hazardous positions
  • restructuring the position
  • providing a modified work schedule and/or
  • leave of absence (however an employer cannot require an employee to take leave from employment if there is a reasonable accommodation that would allow the employee to continue to work).

Employers are not, however, required to create a new position or discharge or transfer any employee with more seniority unless the employer has or would take similar action to accommodate other classes of employees.

Exemptions from Nevada Pregnant Workers’ Fairness Act

Employers who are contractors licensed under Chapter 624 of the Nevada Revised Statutes are exempt from some of the Nevada Pregnant Workers’ Fairness Act’s requirements. These employers are:

  • Not required to provide a place other than a restroom to express milk if the employee is performing work at a construction job site that is located more than three miles from its regular place of business and
  • Exempt from the prohibitions against requiring an employee whose work duties include manual labor to accept an accommodation or take leave from employment

Notice Requirements

Nevada employers are required to provide employees with notice of their rights under the new law in two separate times:

  • to new employees at the start of employment;
  • within 10 days after the employee notifies her immediate supervisor that she is pregnant

In addition, employers are required to post notice of these rights in a conspicuous place at its place of business.

The notice must tell employees that they have the right to be free from discriminatory or unlawful employment practices pursuant to the Nevada Pregnant Workers’ Fairness Act and must also include a statement that a female employee has the right to a reasonable accommodation for a condition relating to pregnancy, childbirth or related medical condition.

The notice provisions of the Act went into effect on June 2, 2017.

Recommendations for Nevada Employers

It is recommended that Nevada employers review the new law and verify that their practices relating to pregnant employees are compliant with the Act. In addition, all Nevada employers should provide all employees with notice of their rights under Nevada Pregnant Workers’ Fairness Act. The Nevada Equal Rights Commission has not yet prepared a sample notice/poster for employers to use and recommends that employers develop their own. Please contact an HR Professional to get a copy of a sample notice and poster.

Two New Mandatory Posters for Colorado Employers

The Colorado Civil Rights Division has released two posters that all Colorado employers must have posted in their workplace effective immediately.

The first poster is a new poster – the Colorado Pregnant Workers Fairness Act Notice. This poster is available in English and Spanish on the Colorado Civil Rights Division’s webpage. The new Colorado Pregnant Workers Fairness Act Notice advises employees of an employer’s statutory obligation to provide reasonable accommodations to an applicant or employee who is pregnant, or who is physically recovering from childbirth or a related condition. This poster must be posted in a prominent location in an employer’s workplace where is can be seen by employees and applicants for employment.

In addition, this notice must be provided to employees as follows:

  • Existing employees: Must receive the notice within 120 days of August 10, 2016;
  • New employees: Must receive the notice at the start of employment

The second poster is a revised version of the Colorado Anti-Discrimination Poster. This poster is available in English and Spanish on the Colorado Civil Rights Division’s webpage. The revised Colorado Anti-Discrimination Poster includes language regarding pregnancy accommodation. This poster must be posted in a prominent location in an employer’s workplace.

All Colorado employers must have these posters posted in their workplaces today. It is recommended that all Colorado employers review their existing postings and verify that they are up-to-date.

New Protections for Pregnant Workers in Colorado

On June 1, 2016, Colorado Governor John Hickenlooper signed the Colorado Pregnant Workers Fairness Act (House Bill 16-1438) into law. This new law amends the Colorado Anti-Discrimination Act (CADA) and requires employers to provide reasonable accommodation to employees experiencing “health conditions related to pregnancy or the physical recovery from childbirth.” The CADA applies to all Colorado employers regardless of the number of employees; therefore, this expansion of protection to pregnant workers affects all Colorado employers.

What are the new requirements?

Reasonable Accommodation

Employers are required to engage in the interactive process with employees experiencing “health conditions related to pregnancy or the physical recovery from childbirth” to determine a reasonable accommodation to perform the essential functions of her job. Appropriate reasonable accommodations include, but are not limited to,

  • Transfer to a light duty position (if available),
  • Longer or more frequent breaks,
  • Easier access to water,
  • Modified work schedules,
  • Assistance with manual labor, and
  • Alternate seating arrangements while on the job.

While leave for “pregnancy disability” is not expressly listed in the law, the law makes it clear that the statutory list is non-exhaustive. Therefore, the employer may be required to grant an employee leave for pregnancy disability as a reasonable accommodation.

It is important to note that while a leave of absence may be an acceptable reasonable accommodation for pregnancy disability, the statute is extremely clear that an employer may not require a pregnant or nursing employee to take leave of absence if it is otherwise possible for the employer to accommodate the woman.

Finally, employers must remember that the new law prohibits employers from retaliating against an employee who requests an accommodation for a pregnancy-related condition.

Undue Hardship

Employers are not required to provide reasonable accommodation for a pregnancy-related condition if doing so would cause the employer an “undue hardship. Under the new law, an undue hardship is defined as “an action requiring significant difficulty or expense to the employer.”

To determine whether an accommodation would impose an undue hardship, the following factors must be taken into consideration:

  • The nature and cost of the accommodation;
  • The employer’s overall financial resources;
  • The overall size of the employer’s business (the number of employees and the number, type, and location of available facilities); and
  • The accommodation’s effect on expenses and resources or on the employer’s operations.

Please note, it will likely be difficult to establish that a proposed accommodation will cause an undue hardship, and employers should, instead, figure out ways to provide accommodation to a pregnant employee.

Notice Requirements

The new law also contains provisions requiring employers to provide notice of the new protections. Specifically, employers are required to:

  • Provide all current employees with written notice of their rights under the new law no later than December 8, 2016;
  • Provide all new employees with written notice of their rights under the new law at the start of their employment; and
  • Post a written notice in a conspicuous place in an area accessible to employees.

Take home for employers

The new law goes into effect on August 10, 2016. It is recommended that employers take the following action before the effective date:

  • Update accommodation policies and employee handbooks to include pregnancy-related accommodations,
  • Prepare the required written notice of rights to distribute to all current and new-hired employees; and
  • Prepare a written notice to be posted in the workplace.

New Utah Law Requires Employers to Provide Reasonable Accommodation to Pregnant Employees

The Utah Antidiscrimination Act already prohibited employers from discriminating against employees on the basis of pregnancy, childbirth, or pregnancy-related conditions, but a newly enacted amendment to that Act (Senate Bill 59) now requires Utah employers to provide reasonable accommodation for pregnant employees.

Under the new law, an employer is prohibited from:

  1. Refusing to provide reasonable accommodations for an employee related to pregnancy, childbirth, breastfeeding, or pregnancy-related conditions if the employee has requested an accommodation;
  2. Requiring an employee to terminate employment (or take a leave of absence) if another reasonable accommodation can be provided to accommodate the employee’s pregnancy, childbirth, breastfeeding, or pregnancy-related condition; and,
  3. Denying employment opportunities to an employee, if the denial is based on the employee’s need for a reasonable accommodations related to her pregnancy, childbirth, breastfeeding, or pregnancy-related conditions.

An employer may be excused from providing reasonable accommodation to an employee for pregnancy, childbirth, breastfeeding, or pregnancy-related conditions if the employer can demonstrate that the accommodation would create an undue hardship on the operations of the employer. An “undue hardship” is defined in the Act as “a requirement that would cause the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s operations.”

Employers may require the employee to provide certification from the employee’s health care provider concerning the medical advisability of a reasonable accommodation. If a certification is required by the employer, it shall include the following elements:

  1. The date the reasonable accommodation becomes medically advisable;
  2. The probable duration of the reasonable accommodation; and
  3. An explanatory statement as to the medical advisability of the reasonable accommodation.

Employers may not require an employee to provide medical certification for “minor” accommodations (e.g. the need for more frequent restroom, food, or water breaks). In addition, employers are not required to permit the employee to have her child at the workplace for purposes of accommodating pregnancy, childbirth, breastfeeding, or related conditions.

Finally, the new law requires employers to notify employees of their rights to reasonable accommodations for pregnancy, childbirth, breastfeeding, or related conditions. This notice may be given by including a provision in the employee handbook relating or by posting a written notice in a conspicuous place in the workplace.

Recommendation for Utah employers

In light of this new law, Utah employers should consider either (1) adding a pregnancy-related reasonable accommodation policy to their employee handbooks or (2) developing a written notice advising employees of their rights under this law.

California Employers — Take Action Now to Comply With New FEHA regulations

Starting April 1, 2016, California’s amended Fair Employment and Housing Act (FEHA) regulations go into effect. Is your organization prepared?

These new regulations make five significant changes to FEHA that impact employers who have employees in California.

  1. Expanded definition of “covered employer.” FEHA applies to employers with 5 or more employees. The new regulations clarify that an employer’s out-of-state employees and employees out on a leave of absence count towards the 5-employee requirement. In other words, a Michigan-based company with a small office of 3-4 employees in California may be sued under FEHA by its California-based employees.
  2. Written anti-discrimination and harassment policies. Employers are required to develop (and distribute) written anti-discrimination and harassment policies that contain certain provisions, including, but not limited to a detailed complaint reporting procedure. To find out more about these requirements, please read our previous blog entitled “California Employers – Do Your Anti-Discrimination/Harassment/Retaliation Policies Meet The New Requirements?.”
  3. New Pregnancy Disability Leave Poster. California employers were already required to post the California Pregnancy Disability Leave notice, but the new regulations have changed the required wording of the notice. To find out more about the new posting requirements, please read our previous blog entitled “New FEHA Regulations Also Require California Employers to Update Their PDL Notices.”
  4. New training requirements. California employers were already required to provide employees with training regarding anti-discrimination and anti-harassment training, but the training must now cover “abusive conduct” (i.e. workplace bullying”) and must address the following:
    1. The negative effects of “abusive conduct,” including reduction in productivity and morale;
    2. The elements of “abusive conduct,” including conduct taken with malice that a reasonable person would find hostile or offensive and that is not related to an employer’s legitimate business interests; and
    3. Emphasize that while a single act ordinarily will not constitute abusive conduct, it could if it is particularly severe or egregious.
  5. Newly defined protected classes. The new regulations provide new definitions for “gender expression,” “gender identity” and “transgender.”
    1. “Gender expression” means a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
    2. “Gender identity” means a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
    3. “Transgender” is a general term that refers to a person whose gender identity differs from the person’s sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.

If you have any questions regarding these new FEHA regulations, please contact an HR Professional.