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.
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