Employment Law Daily Colorado pregnancy accommodation bill heads to governor’s desk
Thursday, May 12, 2016

Colorado pregnancy accommodation bill heads to governor’s desk

By Pamela Wolf, J.D. The Colorado Assembly has finalized a bill that would require employers in the state to provide job applicants and employees with reasonable accommodations related to pregnancy and child birth. The measure also delineates several accommodations that may be required, as well as those that employers may not be required to provide. The legislation is now headed to the governor’s desk for approval. The measure, HB 16-1438, cleared the state house on April 29 by a 40-25 ballot, and passed in the senate on May 9 by a vote of 24-11. Reasonable accommodations. Specifically, HB 16-1438 would require employers to provide reasonable accommodations to perform the essential functions of the job to applicants and employees for health conditions related to pregnancy or physical recovery from childbirth, if the applicant or employee requests the reasonable accommodations, unless the accommodation would impose an undue hardship on the employer's business. Employers would be permitted to require a note from a licensed healthcare provider stating the need for reasonable accommodation before providing one. The legislation would prevent employers from forcing applicants or employees from accepting a reasonable accommodations for health conditions related to childbirth or physical recovery from childbirth they did not request or that are unnecessary to enable them to perform the essential job functions. Similarly, employers would not be able to mandate leave as a reasonable accommodation where the employer could provide another reasonable accommodation. Interactive process. Under HB 16-1438, where an applicant or employee requests an accommodation, the employer and applicant or employee must “engage in a timely, good-faith, and interactive process to determine effective, reasonable accommodations for the applicant or employee for conditions related to pregnancy, physical recovery from childbirth, or a related condition.” Types of accommodations. Under the measure, “reasonable accommodations” may include the following:
  • more frequent or longer break periods;
  • more frequent restroom, food, and water breaks;
  • acquisition or modification of equipment or seating;
  • limitations on lifting;
  • temporary transfer to a less strenuous or hazardous position if available, with return to the current position after pregnancy;
  • job restructuring;
  • light duty, if available;
  • assistance with manual labor; or
  • modified work schedules so long as the employer is not required to:
    • hire new employees that the employer would not otherwise have hired;
    • discharge an employee, transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job;
    • create a new position, including a light duty position for the employee, unless a light duty position would be provided for another equivalent employee; or
    • provide the employee paid leave beyond that which is provided to similarly situated employees.
Adverse actions. Employers would be prohibited from taking adverse actions against employees or denying employment opportunities to applicants or employees due to a request for a reasonable accommodation for childbirth or physical recovery from childbirth or a related condition. Undue hardship. For purposes of HB 16-1438, “undue hardship” would mean “an action requiring significant difficulty or expense to the employer.” The following factors would be taken into account: the nature and cost of the accommodation; the employer’s overall financial resources; the overall size of the employer’s business with regard to the number of employees and the number, type and location of available facilities; and the accommodation’s effect on expenses and resources or on the employer’s operations. Under the measure, the employer’s provision of, or a requirement that the employer provide, a similar accommodation to other classes of employees would create a rebuttable presumption that the accommodation would not impose and undue hardship on the employer.

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