Get ready to engage in an interactive process with your pregnant employees in Kentucky! The recently enacted Kentucky Pregnant Workers Act requires covered employers to make reasonable accommodations related to pregnancy, childbirth, or related medical conditions absent an undue hardship.
The Pregnant Workers Act amends the Kentucky Civil Rights Act, which already prohibits discrimination against employees because of pregnancy, childbirth, and related medical conditions. However, effective June 27, 2019, the new law requires employers with 15 or more employees within Kentucky to engage in a timely, good-faith, interactive process with employees to determine effective reasonable accommodations. The law specifies that accommodations may include:
- More frequent or longer breaks;
- Time off to recover from childbirth;
- Acquiring or modifying equipment;
- Providing appropriate seating;
- Temporary transfer to a less strenuous or less hazardous position;
- Job restructuring;
- Light duty;
- Modifying work schedules; and
- Providing a private space (not a bathroom) for expressing breast milk.
Employers may not require an employee to take a leave of absence from work if another reasonable accommodation may be provided.
Failure to make reasonable accommodations for an employee with limitations related to pregnancy, childbirth, or related medical condition(s) will be deemed an unlawful employment practice, unless the employer can show that the accommodation would impose an undue hardship on the employer’s program, enterprise, or business. The undue-hardship analysis for pregnancy-related accommodations will be similar to what must be followed for purposes of disability-related accommodations under the Kentucky Civil Rights Act. The factors to be considered are:
- The nature and cost of the needed accommodation;
- The overall financial resources of the facility involved in the provision of the reasonable accommodation, including the number of employees and effect on expenses, resources, and impact on the operation;
- The overall financial resources of the covered entity, including the number of employees and number, type, and location of its facilities; and
- The type of operation, including the composition, structure, and functions of the workforce; the geographic separateness; and the administrative or fiscal relationship of the facility in question to the covered entity.
Two additional factors go into the analysis for purposes of pregnancy and childbirth-related accommodations, namely the duration of the requested accommodation and whether similar accommodations are or have been made for other employees due to any reason.
If an employer provides certain accommodations to other classes of employees, then a rebuttable presumption exists that the same accommodation would not impose an undue hardship on the employer when offered to pregnant employees.
Kentucky employers must post a written notice in a conspicuous place of employees’ right to be free from discrimination due to pregnancy, childbirth, and related medical conditions, including the right to reasonable accommodations. In addition, employers must provide a written notice of those rights to existing employees no later than July 27, 2019 (30 days after the effective date of the new law), and to newly hired employees at the start of employment. Kentucky has not yet provided sample notices or updated its Equal Employment Opportunity poster to include the rights provided by the Pregnant Workers Act, but should it do so, we will post an update.
What Employers Should Do Now
Covered Kentucky employers should review and, if necessary, update their policies, procedures, and employee handbooks related to reasonable accommodations and pregnancy/childbirth leaves or other working conditions. Employers should train the appropriate personnel, including human resource professionals, managers, and supervisors, on addressing accommodation requests and knowing how and when to engage in the interactive process with affected employees. If not already established, employers should find and designate a private room for employees to express breast milk. No later than June 27, 2019, covered organizations need to post the required notice in their workplace in an area accessible to employees and provide written notice to existing employees no later than July 27, 2019. Finally, new hire paperwork should be updated to include notice of employees’ right to reasonable accommodations under the Kentucky Pregnant Workers Act.
What ReedGroup Is Doing
If you are using ReedGroup’s leave management services or software, we are updating our leave management platforms to encompass the new law, training staff, updating scripts and/or notifications, and incorporating Kentucky’s new law into Leave Advisor®.