Under new legislation signed into law by Governor Matt Bevin, many Kentucky employers have enhanced responsibilities to provide reasonable accommodations to pregnant employees. Kentucky is the 25th state to adopt such legislation.
For all but the smallest employers, pregnancy discrimination is already prohibited under the Kentucky Civil Rights Act, KRS Chapter 344, and its federal counterpart, Title VII. However, these federal laws provide little guidance on what constitutes “reasonable accommodations” for pregnant workers and new mothers. The new Kentucky Pregnant Workers Act (the “Act”) amends and clarifies the Kentucky Civil Rights Act on this issue and imposes additional responsibilities on employers with respect to pregnant employees and new mothers.
Under the Act, employers with fifteen or more employees within Kentucky are required to provide “reasonable accommodations” for employees’ pregnancy, childbirth, or related medical conditions, including lactation or breast milk expression. “Reasonable accommodations” 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 hazardous position, job restructuring, light duty, modified work schedule, and private space that is not a bathroom for expressing breast milk.
An employer is not required to provide an accommodation if the employer can show that providing the accommodation would cause an “undue hardship.” Such a showing, however, requires proof of a “significant difficulty or expense” when considered in light of various factors, including the nature and cost of the specific accommodation, the overall financial resources of the facility, and the impact on operations. Employers must also consider the expected duration of the requested accommodation and whether similar accommodations are required by policy to be made, have been made, or are being made for other employees due to any other reason.
The Act also includes the following requirements and legal presumptions:
1. An employer may not require an employee to take leave from work if another reasonable accommodation can be provided;
2. The employer and employee must engage in a timely, good faith, and interactive process to determine effective reasonable accommodations; and
3. There is a rebuttable presumption that the accommodation does not impose an undue hardship on the employer if the employer has a policy to provide, would be required to provide, is currently providing, or has provided a similar accommodation to other classes of employees.
Finally, the Act requires covered employers to post written notice of the Act in a conspicuous location, inform new employees of the Act at the commencement of their employment, and provide existing employees with written notice no later than thirty (30) days after the effective date of the Act.
The Act, which was signed into law on April 9th, will become effective June 27, 2019. Therefore, the deadline for employers to provide existing employees with notice is July 27, 2019.
Moving forward, Kentucky employers should review their human resources practices and make sure that they are in compliance with the requirements of the new law. Violations of the Act can be prosecuted in the courts or through the Kentucky Commission on Human Rights, as with other claims brought under the Kentucky Civil Rights Act.