Part one of this article touched on the various laws surrounding pregnancy accommodations, with a specific focus on the new, upcoming laws in Nevada and Washington. This article will focus on the upcoming law in Vermont, as well as probable new laws for Connecticut and Massachusetts.
Effective January 1, 2018, Vermont’s short and sweet accommodation law amends the state’s existing Americans with Disabilities Act (ADA)-equivalent to specifically require covered employers to also provide a reasonable accommodation for an employee’s pregnancy-related condition unless the accommodation would impose an undue hardship on the employer. (21 V.S.A. § 495k).
Covered employers. The law applies to all employers.
Covered conditions. A “pregnancy-related condition” means a limitation of an employee’s ability to perform the functions of a job when that limitation is caused by pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
The law specifies that, though the same rights offered to individuals with disabilities are also to be offered to employees with pregnancy-related conditions, the law is not intended to suggest that pregnancy or a pregnancy-related condition constitutes a disability.
Required and prohibited activities. It is an unlawful employment practice for an employer to fail to provide a reasonable accommodation for an employee’s pregnancy-related condition unless it would impose an undue hardship on the employer.
Reasonable accommodations. Vermont’s law simply specifies that an employee with a pregnancy-related condition, regardless of whether the employee is an “individual with a disability” as defined under the state’s ADA equivalent, will have the same rights and be subject to the same standards with respect to the provision of a reasonable accommodation as a qualified individual with a disability.
Examples include, but are not limited to:
- Making the facilities used by the employees, including common areas used by all employees such as hallways, restrooms, cafeterias and lounges, readily accessible to and usable by individuals with disabilities; and
- Job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices and other similar actions.
Undue hardship. In determining whether an accommodation creates an undue hardship, factors to be considered include the overall size of the employer’s operation with respect to the number of employees, the number and type of facilities, the size of budget, and the cost of the needed accommodation.
Notice. The Vermont Department of Labor will provide a new sample notice of the expanded rights under this law; employers must then post this notice in a conspicuous place in the business.
Retaliation. As noted above, the Vermont law generally entitles employees with pregnancy-related conditions to “the same rights” as a qualified individual with a disability under state law. This includes freedom from discrimination, harassment, and retaliation.
Connecticut’s law is still awaiting probable signature by Governor Dannel Malloy. Once his ink dries on this new law, it will become effective October 1, 2017, and the following provisions will apply. (HB 6668; Public Act No. 17-118).
Covered employers. Connecticut’s law will apply to any person or employer with three or more employees.
Covered conditions. The law covers pregnancy, childbirth, or a related condition, including, but not limited to, lactation.
Required and prohibited activities. It is a discriminatory practice for an employer to fail or refuse to make a reasonable accommodation for an employee or applicant due to her pregnancy unless the employer can demonstrate that such accommodation would impose an undue hardship.
Employers may not discriminate against an employee or applicant on the basis of pregnancy in the terms or conditions of her employment. Employers also may not limit, segregate, or classify a covered employee in a way that would deprive her of employment opportunities due to her pregnancy.
Employers are also prohibited from requiring a covered employee or applicant to accept an accommodation if the employee or applicant does not have a known limitation related to her pregnancy or does not require a reasonable accommodation to perform the essential duties of her job. As with the other states’ laws, Connecticut employers will also be prohibited from requiring employees to take leave from employment if a reasonable accommodation can be provided in lieu of such leave.
Reasonable accommodations. Examples of reasonable accommodations include, but are not limited to:
- Being permitted to sit while working;
- More frequent or longer breaks;
- Periodic rest;
- Assistance with manual labor;
- Job restructuring;
- Light duty assignments;
- Modified work schedules;
- Temporary transfers to less strenuous or hazardous work;
- Time off to recover from childbirth or break time; and
- Appropriate facilities for expressing breast milk.
Undue hardship. Undue hardship will be determined in light of the nature and cost of the accommodation, the overall financial resources of the employer, the overall size of the employer’s business, and the effect of such accommodation on the operation of the employer.
Notice. Employers will be required to provide written notice of employee rights, including the right to reasonable accommodation, to:
- New employees upon hire;
- Existing employees within 120 days of the effective date of the law; and
- Any employee who notifies the employer of her pregnancy. This notice must be provided within 10 days of the notification.
Under the Connecticut law, these notice provisions may also be fulfilled by displaying a poster detailing the rights under the law, in both English and Spanish, in a conspicuous location within the workplace.
Retaliation. Employers may not deny an employment opportunity to an employee or applicant due to a request for reasonable accommodation. Employers also may not retaliate against an employee in the terms, conditions, or privileges of her employment based on a request for accommodation.
Finally, Massachusetts’ Pregnant Workers Fairness Act, which passed in the state House unanimously, will soon be considered by the state Senate. The Act would establish similar accommodation rights for pregnancy and related conditions. (HB 3680).
For some employers, the primary effect of these laws may simply be a poster update and quick policy review. Nonetheless, the laws signal a clear legislative intent to remove any uncertainty as to whether pregnancy—including those that may not necessarily be limiting or disabling—should be met with opportunities for employees to continue working for as long as possible and desired.
Employers in all states should take this opportunity to review policies and practices to proactively assess how such gray areas of pregnancy accommodation would be handled in their workplaces.
|Holly K. Jones, JD is a Senior Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.
She graduated magna cum laude and Phi Beta Kappa with a BA in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee.
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