Last week Governor Bevin signed Senate Bill 18, the Kentucky Pregnant Workers Act. The Act amends the Kentucky Civil Rights Act (KCRA) and applies to employers with 15 or more employees within the state in each of twenty (20) or more calendar weeks in the current or preceding calendar year, as well as any agent of the employer. The new law requires employers to provide reasonable accommodations to employees who are limited due to pregnancy, childbirth, and related medical conditions, unless it would impose an undue hardship on the employer to do so. The law includes lactation and the need to express breastmilk for a nursing child as a related medical condition that must be reasonably accommodated absent undue hardship.
The law provides the following examples of reasonable accommodations an employer may have to provide to an employee who is limited due to her pregnancy, childbirth, or related medical condition:
- More frequent or longer breaks
- Time off to recover from childbirth
- Acquisition or modification of equipment
- Appropriate seating
- Temporary transfer to a different job
- Modified schedules
- Light duty
- Private space to express breastmilk other than a bathroom
In determining whether an undue hardship exists, an employer must consider, among other things, the duration of the requested accommodation and whether the employer has a policy of providing, has provided in the past, or is currently providing similar accommodations to other employees due to any reason. If such a policy or practice exists, then a rebuttable presumption is created that the accommodation does not impose an undue hardship on the employer. This rebuttable presumption is sure to cause chaos for a while, as the statute is very broadly worded.
The new law also provides that an employee shall not be required to take leave from work if another reasonable accommodation can be provided. The law expressly requires the employer and employee to engage in a timely, good faith, and interactive process to determine effective reasonable accommodations.
The statute becomes effective June 27, 2019. By June 27, employers must post a notice of the new law. In addition, employers must begin providing notice to new employees upon commencement of employment of their right to be free from discrimination based on pregnancy, childbirth, and related medical conditions, and their right to be reasonably accommodated for such conditions. By July 27, 2019, employers must provide similar written notice to current employees.
As a Kentucky employer, you may be asking yourself, does the Kentucky Pregnant Workers Act really require me to do something different from what I’m already doing under the various other laws and court decisions protecting pregnant employees? The answer is yes. Kentucky’s new law expands the scope and breadth of what must be provided. It requires employers to accommodate employees who are limited –not just disabled under the ADAAA or KCRA, or unable to perform an essential function of their job due to serious health condition under the FMLA. That’s a big difference. What does it mean to be “limited?” Who decides whether a pregnant employee is “limited?” In addition, employers covered by the FLSA are only required to provide non-exempt employees with lactation breaks (subject to an undue hardship defense for smaller employers) and a private space other than a bathroom to express breastmilk for up to one year. However, the Kentucky statute also applies to exempt employees and does not place any limit on how long an employer is required to accommodate a nursing mother.
If you have any questions regarding the new Kentucky law or need assistance updating your handbook policies and preparing the required notices, please contact the Jackson Lewis attorney with whom you regularly work.