Employers with operations in Kentucky were recently affected by a new pregnancy law that went into effect at the end of June 2019. Employers who are subject to the law will be required to provide reasonable accommodations to workers for pregnancy, childbirth and related conditions.
Under federal law, most employers already are prohibited from discriminating against pregnant workers based on pregnancy, childbirth or related medical conditions. Federal law, however, doesn’t require accommodations under all situations. Early in 2019, the Kentucky legislature introduced Senate Bill 18 – also known as the Kentucky Pregnant Workers Act – to fill in some of the gaps.
The Pregnant Workers Act amends the Kentucky Civil Rights Act as it relates to pregnant employees by requiring companies with 15 or more employees to provide “reasonable accommodations” for pregnancy, childbirth and related conditions. Under the Pregnant Workers Act, employers will be liable if they fail to make reasonable accommodations for an employee who requests an accommodation for pregnancy, childbirth, or a related medical condition.
As for the accommodations that should be considered, the Act expands the definition of “reasonable accommodation” to include a number of accommodations not enumerated under federal pregnancy law, including:
- The need for more frequent or longer breaks;
- Time off to recover from childbirth;
- Acquisition or modification of equipment;
- Appropriate seating;
- Temporary transfer to a less-strenuous or less-hazardous position;
- Job restructuring;
- Light duty or modified work schedule; and
- Private space that is not a bathroom for expressing breast milk.
The Pregnant Workers Act also creates the first lactation accommodation requirement in Kentucky, defining “related medical condition” to include lactation or the need to express breast milk. As noted above, the new law requires employers to provide space, other than a bathroom, for their nursing employees to express breast milk.
Of note, an employee shall not be required to take leave from work if another reasonable accommodation can be provided. The law also expressly requires the employer and employee to engage in a timely, good-faith interactive process to identify an effective reasonable accommodation. And, as is the case under federal law, employers can decline a requested accommodation by demonstrating it presents an “undue hardship” to its operations. 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 providing similar accommodations to other employees for any reason. If such a policy or practice exists, then a rebuttable presumption is created that the accommodation does not impose an undue hardship to the employer.
The law went into effect on June 27, 2019, and employers were required to begin complying on day one. Those of you with operations in Kentucky should review your workplace policies and practices – if you haven’t done so already – to determine if any updates are necessary. The new law also requires Kentucky employers to post a notice regarding the Pregnant Workers Act in a conspicuous place, provide existing employees written notice of the new requirements within 30 days of the law going into effect and provide written notice about the law to new employees at the start of their employment. The Kentucky Commission on Human Rights recently updated its Equal Employment Opportunity Poster to include information on the new Pregnant Workers Act for employers to distribute to their employees.
Paul Goatley, Fisher Phillips
This article provides an overview of certain legal issues. It is not intended, and cannot be construed, as legal advice for any purpose. For more information, contact an attorney in the Louisville, Kentucky, office of Fisher Phillips at 502-561-3990.