Kentucky Employers - New Pregnancy Worker Accommodation Law Becomes Effective June 27, 2019
Stites & Harbison Client Alert, May 21, 2019
The Kentucky Pregnant Workers Act (“KPWA”) requires Kentucky employers, with 15 or more employees, to evaluate pregnant employees’ requests for accommodations related to medical issues tied to their pregnancy or childbirth somewhat differently. For example, employers are aware that under the federal Pregnancy Discrimination Act, as well as the Kentucky Civil Rights Act, employment discrimination based on pregnancy is illegal. In addition, under the federal Americans with Disabilities Act (“ADA”) employers may be required to provide reasonable accommodations to qualified employees who experience medical issues related to pregnancy to help the employee perform the essential functions of her job, with or without an accommodation. Moreover, the federal Family & Medical Leave Act requires covered employers to grant job protected unpaid leaves of absence to eligible employees, including absences for incapacity related to pregnancy and childbirth, for up to 12 weeks.
How is the KPWA different? The new law appears to provide much broader accommodation options for employees who have “limitations related … to pregnancy, childbirth and related medical conditions.” Specifically, the law defines a reasonable accommodation for such an employee 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 a private space that is not a bathroom for expressing milk. Employers should note that the list of possible accommodations are not exclusive, meaning there could be other accommodations requested and required if the accommodation does not impose an undue hardship for the employer.
In making a determination as to whether a requested accommodation is reasonable, an employer must consider the duration of the accommodation, and whether it has a policy of providing or has provided in the past or is currently providing, similar accommodations to other employees due to other reasons (such as light duty for work related injuries). If there is such a policy or practice, then there is a rebuttable presumption that the pregnancy accommodation does not impose an undue burden on the employer. The KPWA requires that employers and employees engage in a timely, good faith and interactive process to determine what effective reasonable accommodations can be made. Moreover, an employer may not require the employee take leave if there are other reasonable accommodations that will allow the employee to continue working.
How these broader reasonable accommodation requirements and determinations will interplay with ADA and FMLA requirements, is yet to be determined. For example, a covered employer for the purposes of the KPWA, but not for the purposes of FMLA, may be required to allow unpaid leave for childbirth, where there was previously no legal obligation to do so. If so, how long does the leave last? What if the employee has been employed for less than 12 months? How does an accommodation interact with a no-fault attendance policy? If the employee requests to return part-time, can the employer require a doctor’s note for such a request? Unfortunately it does not appear these issues were fully debated or discussed during the legislative process and there will be many unknowns as the law goes into effect.
The law becomes effective June 27, 2019. By that date employers must post a notice of the new law which can be found here on the Kentucky Commission on Human Rights’ website. Employers must begin providing notice to new employees upon the commencement date of their employment. And by July 27, 2019, employers must provide similar written notice to current employees as well.
Because the statute is so broadly written and there is no one federal law which includes similar statutory language, Kentucky employers and courts will be faced with interpreting and applying this statute containing unfamiliar provisions to the workforce for many years to come. Accordingly, before denying any pregnant worker a request for an accommodation of any kind, be sure to contact legal counsel to discuss the impact of this new law.