Search form

Colorado Expands Pregnancy Discrimination Law

By Ryan P. Lessmann and Kristen M. Baylis
  • June 9, 2016

Colorado Governor John Hickenlooper has signed into law a bill that makes it an unfair employment practice if an employer fails to provide reasonable accommodations to a job applicant or an employee for conditions related to pregnancy or childbirth.

Amending the Colorado Anti-Discrimination Act, the bi-partisan bill (House Bill 16-1438) provides greater protections for pregnant employees than those provided under federal law. The new law applies to most employers, regardless of size, and requires accommodations for conditions related to pregnancy or childbirth that may qualify as disabilities under the Americans with Disabilities Act.

All Colorado employers must comply with the new law, which goes into effect on August 10, 2016.

Requirements

Under the new law, employers must provide reasonable accommodations to applicants and employees for health conditions related to pregnancy or the physical recovery from childbirth if the applicant or employee requests such accommodations.

The law also requires employers to engage in an interactive process with employees who request accommodations. The interactive process must be timely and conducted in good-faith to determine “effective, reasonable accommodations.”

The employer may require the applicant or employee to provide a note from her health care provider stating the need for a reasonable accommodation.

Examples of reasonable accommodations 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;
  • Job restructuring;
  • Light duty;
  • Assistance with manual labor; and
  • Modified work schedules.

An employer cannot require a pregnant applicant or employee to accept an accommodation that the applicant or employee has not requested and it cannot require an employee to take leave if the employer can provide another reasonable accommodation. This supports the legislative intent of keeping pregnant women employed so that they can generate income for their families.

Undue Hardship

Employers, however, are not required to provide accommodations that impose any “undue hardship” to the employer’s business.

Factors considered in determining undue hardship include:

  • the nature and cost of the accommodation;
  • the overall financial resources of the employer;
  • the overall size of the employer’s business; and
  • the effect on the expenses, resources, or operations of the employer.

Employers also are not required to hire new employees, discharge employees, transfer employees with more seniority, promote unqualified employees, or create new positions.

However, if an employer provides an accommodation to another class of employees, but fails to provide a similar accommodation to pregnant employees, the law presumes the accommodation does not impose an undue hardship.

Retaliation Prohibited

Employers may not retaliate against employees who request or use a reasonable accommodation related to pregnancy, childbirth, or a related condition.

The definition of “adverse action” includes “any action where a reasonable employee would have found the action materially adverse, such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The new law arguably covers a broader range of adverse employment actions than federal law.

Moreover, employers may not deny employment opportunities to an employee based on the need to make a reasonable accommodation.

Notice

Beginning August 10, 2016, employers must provide new employees written notice of employees’ right to be free from discriminatory or unfair employment practices at the start of employment.

Employers must provide current employees with written notice of their rights under the new law by December 8, 2016.

As with other discrimination and employment safety laws, employers must post the required notice in a conspicuous place in the employer’s place of business. The law does not provide specific guidance on the content or language of the required notice.

Colorado employers should update their policies and prepare written notifications for new and current employees now. If you have any questions about this bill, please contact Jackson Lewis for assistance.

©2016 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

See AllRelated Articles You May Like

November 7, 2017

Mayor Signs Law Adding Safe Time to NYC Earned Sick Time

November 7, 2017

New York City Mayor Bill de Blasio signed Intro 1313-A into law, requiring employers to provide paid time off for hours taken in connection with family offense matters, sexual offenses, stalking, and human trafficking, grouped collectively as “Safe Time.” On November 6, 2017, NYC Mayor Bill de Blasio signed into law Intro 1313-A, an... Read More

October 18, 2017

New York City Council Expands Earned Sick Time Law to Include Safe Time

October 18, 2017

New York City’s Earned Sick Time Act (also known as the Paid Sick Leave Law) will require employers to allow employees to use paid time off for “Safe Time” under an amendment (Int. 1313-A) passed by the New York City Council on October 17, 2017. Under the revised law (the “Earned Safe and Sick Time Act”), employers will be required to... Read More

October 6, 2017

Rhode Island Enacts Paid Sick Leave Law

October 6, 2017

Rhode Island has joined the growing list of states and municipalities that have enacted paid sick leave laws. Under the Healthy and Safe Families and Workplaces Act, signed by Governor Gina Raimondo, employers with at least 18 employees must provide their employees with paid sick leave. The new law goes into effect July 1, 2018.... Read More