Are You Ready for Colorado's Pregnant Workers Fairness Act?

By Kristin Berger Parker

New accommodation and notice requirements are effective next week.

With a law signed earlier this summer, Colorado became the 17th state to require private-sector employers to provide certain accommodations to pregnant (and postpartum) employees, to accommodate medical conditions and limitations that may not rise to the level of a disability under the Americans with Disabilities Act (ADA). The law, signed June 1, 2016, requires all employers to provide notice of pregnancy accommodations to new hires and offer the accommodations, effective next Wednesday, Aug. 10. Additional written notice requirements go into effect on Dec. 8, 2016. This law impacts all employers who have at least one employee in Colorado.

The Pregnant Workers Fairness Act (Act) states that an employer “shall” provide reasonable accommodations for any “health conditions related to pregnancy or the physical recovery from childbirth.” The definition of a “health condition” does not require that such conditions rise to the level of a protected disability under the ADA. For example, employees with morning sickness or back pain caused by pregnancy may require accommodation under the Act, even if such condition would not be covered by the ADA.

The Act identifies a number of possible accommodations, including: more frequent or longer break periods; more frequent restroom, food, and water breaks; acquisition or modification of equipment or seating; limitations of lifting; temporary transfer to a less strenuous or hazardous position, if available; job restructuring; light duty, if available; assistance with manual labor; or modified work schedules. These accommodations would be deemed reasonable so long as the employer is not required to hire new employees, discharge an employee, transfer or promote an employee, create a new position, or provide leave beyond that provided to similarly situated employees. Further, the Act prohibits employers from requiring that an employee take leave, if another accommodation is available.

However, the accommodations listed above are not the exclusive accommodations that may be required under the law. Similar to the ADA, the Act contains an obligation for employers to engage in an interactive process when an employee indicates that she needs an accommodation for a health condition related to her pregnancy. The Act also incorporates the undue hardship concept found in the ADA.

Additional requirements (and prohibitions) under the Pregnant Workers Fairness Act:

  • Employers must provide written notice to new employees at the start of their employment, beginning Aug. 10, 2016.
  • Employers must post a notice of rights in the workplace.
  • Employers must provide written notice of the Act to current employees within 120 days of the Act’s effective date, or by Dec. 8, 2016.
  • Employers are prohibited from taking adverse action against employees or applicants who request or use a reasonable accommodation protected under the Act.

The Act may also expand the definition of “adverse action” found in the Colorado Anti-Discrimination Act to any action that a “reasonable employee would [find] . . . materially adverse, such that it might [dissuade] a reasonable worker from making or supporting a charge of discrimination.”

In addition to Colorado, the following states have statutory provisions governing accommodations for pregnant workers: California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Louisiana, Maryland, Minnesota, Nebraska, New Jersey, New York, North Dakota, Rhode Island, Utah and West Virginia.

If you have questions about the Pregnant Workers Fairness Act, including: drafting notices to new hires and employees, reviewing anti-discrimination policies and posters, and responding to requests for accommodation, please contact Kristin Berger Parker, Amy Conway or the Stinson Leonard Street attorney with whom you regularly work.

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