The Kentucky Senate passed the proposed Kentucky Pregnant Workers’ Rights Act on February 22 by a vote of 25-7. The House received the bill and referred it to it Judiciary Committee, where it was posted on March 1.
This bill would amend the Kentucky Civil Rights Act, which is our state’s main anti-discrimination law protecting employees. While pregnancy discrimination is already prohibited by the Kentucky Civil Rights Act and its federal counterpart, Title VII, this bill would impose additional responsibilities on employers to implement accommodations in the workplace for the physical challenges of pregnancy and for breastmilk expression after birth.
New reasonable accommodations
If passed, the bill would require covered employers to reasonably accommodate employees “affected by pregnancy, childbirth, or related medical conditions” (including lactation or breast milk expression) by providing:
- Breaks that are longer or more frequent
- Time off for recovery from birth
- New or modified equipment
- Seating that is appropriate
- Temporary assignment to a job that is “less strenuous or less hazardous”
- Restructuring of a job
- Light duty work
- Modifications to work schedule
- Private space to express breast milk that is not a bathroom
Undue hardship exception
An employer need not accommodate an employee if it can show that providing a requested reasonable accommodation related to pregnancy, childbirth or a related medical condition would cause an “undue hardship on the employer’s program, enterprise, or business.” Such a showing, however, requires proof of a “significant difficulty or expense” upon consideration of a list of factors that look at financial strain, the premises, the nature of the business, and other things, including new ones for pregnancy accommodation:
- How long the accommodation would last
- Whether other employees have had similar accommodations
The bill would also require in the case of reasonable accommodation for pregnancy, childbirth, or related conditions:
- If the employer could offer a different reasonable accommodation, an employee must not accept an offered accommodation or take leave
- A “timely, good faith, and interactive” dialog between the employer and employee to “determine effective reasonable accommodations”
- A rebuttable presumption arises that an accommodation would not be an undue hardship if the employer has already provided it to other employees or if the law would require the employer to provide it
If passed, the legislation would require employers to give notice to their employees of their right to be free from pregnancy discrimination and their right to reasonable accommodations related to pregnancy, childbirth, and related conditions. The law would also require employers to post a written notice in a place accessible by employees.
Any employee with questions about her Kentucky employer’s responsibilities with respect to pregnancy-related accommodations, including lactation, should speak with an employment law attorney. Similarly, a Kentucky employer should proactively seek legal advice about these responsibilities to both comply with federal and state requirements and to avoid or mitigate the chances of litigation.