New Kentucky “Pregnant Workers Act”

NEW KENTUCKY “PREGNANT WORKERS ACT” IMPOSES ADDITIONAL COMPLIANCE OBLIGATIONS ON EMPLOYERS

On the final day of the 2019 legislative session, the Kentucky Legislature passed a law revising the Kentucky Civil Rights Act to provide additional protection to pregnant workers, which exceeds that provided by federal law. The new law applies to employers with 15 or more employees, and contains the following provisions:

• It is an unlawful practice for an employer to fail to make reasonable accommodations for an employee with limitations related to pregnancy, childbirth, or a related medical condition who requests accommodation, including but not limited to the need to express breast milk, unless the employer can demonstrate the accommodation would impose an undue hardship on the employer’s business.
• Reasonable accommodation may include: 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; modified work schedule; and private space that is not a bathroom for expressing breast milk.
• The following shall be required as to reasonable accommodations:

1. An employee shall not be required to take leave from work if another reasonable accommodation can be provided.
2. The employer and employee shall engage in a timely, good faith, and interactive process to determine effective reasonable accommodations.
3. If the employer has a policy to provide, is currently providing, or has provided a similar accommodation to other classes of employees, then a rebuttable presumption is created that the accommodation does not impose an undue hardship on the employer.

• The following additional factors are considered when determining undue hardship in the case of pregnancy, childbirth, and related medical conditions:

1. The duration of the requested accommodation.
2. Whether similar accommodations are required by policy to be made, have been made, or are being made for other employees due to any reason.

Employers are required to provide a written notice of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions, including the right to reasonable accommodation, to current employees within 30 days of the June 29, 2019 effective date of the law; and thereafter to new employees at the commencement of employment. There is also a separate posting requirement of those rights.

Covered employers will obviously have to carefully consider all accommodation requests made by pregnant employees, and engage in an interactive process to discuss any requested accommodation. As with all employment matters, good documentation should be maintained to evidence compliance.