Kentucky Governor Matt Bevin (R) recently signed the Pregnant Workers Act, SB 18, to provide pregnancy-related accommodations for employees in the Bluegrass State. This measure amends the Kentucky Civil Rights Act (KCRA) to require employers to make reasonable accommodations for employees related to pregnancy and childbirth, and extends existing protections against retaliation and discrimination to cover pregnancy and childbirth.
Reasonable Accommodation Requirement
The Pregnant Workers Act obligates employers with 15 or more employees in the State of Kentucky, in each of 20 or more calendar weeks in the current or preceding calendar year, to provide accommodations for “an employee’s own limitations related to her pregnancy, childbirth or related medical conditions.” While the terms “pregnancy” and “childbirth” are not defined in the statute, “related medical conditions” is defined to include (but is not limited to) lactation and the need to express breast milk, as found in the federal Pregnancy Discrimination Act.
The law provides examples of the types of accommodations that may be appropriate. It explicitly states that accommodations for an employee’s limitations related to pregnancy, childbirth or related conditions may include:
Frequent or longer breaks;
Time off to recover from childbirth;
Acquisition or modification of equipment;
Temporary transfer to a less strenuous or less hazardous position;
Modified work schedule; and
Private space that is not a bathroom, to express breast milk.
Although the reasonable accommodation requirement is limited to employers with at least fifteen employees, SB 18 did not change the general definition of “employer” under the KCRA for other purposes. Thus, the statute’s anti-discrimination and anti-retaliation provisions apply to all employers with eight or more employees in the state.
The Pregnant Workers Act provides an exception to the reasonable accommodation requirements if “the employer can demonstrate the accommodation would impose an undue hardship on the employer’s program, enterprise, or business.” When assessing whether an accommodation would pose such a hardship, numerous factors are considered. Under the new law, two special factors should be considered when evaluating accommodation requests for an employee’s pregnancy, childbirth or related medical conditions: (1) the duration of the accommodation sought; and (2) “[w]hether similar accommodations are required by policy to be made, have been made, or are being made for other employees due to any reason.”
The statute includes three additional provisions guiding consideration of an employee’s accommodation request. First, employers are required to engage in a timely, good faith, and interactive discussion with a pregnant or lactating employee to determine what accommodations would be effective and reasonable. Second, and related to the above-noted hardship analysis, if the employer has provided, or has a policy to provide, similar accommodations to other employees for other conditions, there is a rebuttable presumption that the employer would not be unduly burdened by similar accommodations for an employee seeking accommodation under the Pregnant Workers Act. Third, employees cannot be forced to take leave time if other reasonable accommodations would be sufficient to allow them to continue working.
Notice and Posting Requirements
The Pregnant Workers Act also imposes new notice and posting obligations. It requires employers to notify current employees of their right to be free from discrimination in relation to pregnancy, childbirth and related conditions—including their right to reasonable accommodation—within 30 days of its June 27, 2019 effective date. New employees must receive similar notice at the commencement of their employment. Additionally, employers must conspicuously post a notice of the law’s requirements in their workplaces by June 27, 2019.
In light of the Pregnant Workers Act, covered Kentucky employers should review their accommodation policies to ensure that existing protocols could be applied to accommodation requests under the new law. Employers should update those procedures if needed, as well as prepare the mandatory notice and posting. Employers should also consider what other steps may be needed to provide reasonable accommodations, such as whether private space is currently available for employees who need to express breast milk, and how to provide recovery time to employees after childbirth.