Oregon recently enacted the Employer Accommodation for Pregnancy Act, HB2341 (the “Act”), which provides rights and protections to applicants and employees who are pregnant and postpartum. The Act applies only to employers with 6 or more employees – the same coverage threshold as the state’s antidiscrimination provisions protecting disabled individuals.
When the Act goes into effect on January 1, 2020, it will:
- require covered employers to make reasonable accommodations for an applicant’s or employee’s limitations arising from pregnancy, childbirth, or a related medical condition, unless an accommodation would impose an undue hardship on the business;
- prohibit covered employers from denying employment opportunities to applicants and employees based on the need to make reasonable accommodations for the individual’s pregnancy, childbirth, or related medical condition;
- prohibit covered employers from discriminating or retaliating against an applicant or employee with respect to any term or condition of employment because the individual has inquired about, requested, or used a reasonable accommodation under the Act;
- prohibit covered employers from forcing a pregnant or postpartum applicant or employee to accept an accommodation:
- if it is unnecessary for performance of the essential duties of the job; and/or
- if the applicant or employee does not have a known limitation arising from pregnancy, childbirth, or a related medical condition; and
- prohibit covered employers from requiring an applicant or employee with known limitations arising from pregnancy, childbirth, or a related medical condition to take any form of leave, if the employer can otherwise reasonably accommodate the individual.
Accommodations for Pregnancy-Related Limitations
The Act provides a short, non-exhaustive list of examples of accommodations an employer may be required to provide to an applicant or employee limited by pregnancy, childbirth, or a related medical condition (including but not limited to lactation). Potential accommodations include:
- the acquisition or modification of equipment or devices;
- more frequent or longer break periods or periodic rest;
- assistance with manual labor; and
- modification of work schedules or job assignments.
Of course, employees may request and employers may be required to provide any number of other accommodations depending on the circumstances. But employers are not required to provide any accommodation that would impose an undue hardship (defined as “significant difficulty or expense”) on the operation of the business. Factors to consider when determining the existence of significant difficulty or expense include, but are not limited to:
- the nature and cost of the accommodation;
- the financial resources of the business;
- the size of the workforce;
- the types of operations conducted by the employer; and
- the accommodation’s effect on the business’s expenses and resources.
Notice Requirements Under the Act
Once the Act becomes effective in 2020, Oregon employers must have posted signs describing employees’ rights under the Act in a conspicuous and accessible location in the workplace. Employees must also receive written notice of the law at the time of hire or, for existing employees, on or before June 29, 2020.
Separately, businesses must provide a pregnant employee in Oregon with written notice of the law within 10 days after the employer receives the information that the employee is pregnant, regardless of how recently or frequently the employee has previously received written notice.
The Act does not contain any guidelines for what constitutes adequate notice of a pregnancy such that it would trigger an employer’s obligation to reissue written information concerning the law. Employers would be wise to wait for an affirmative statement by the employee to a supervisor, human resources representative, or other company manager, and avoid making any assumptions based upon an employee’s appearance, behavior, or office “news.”
Relief for Violations of the Act
An individual who believes a violation of the pregnancy accommodation law has occurred can file a civil lawsuit in Oregon state court without the necessity of filing a complaint with an equal employment opportunity agency. However, if the applicant or employee prefers, he or she may file a complaint with the Oregon Bureau of Labor and Industries.
An aggrieved individual may have additional recourse under anti-discrimination laws such as the Pregnancy Discrimination Act and the Americans with Disabilities Act, which provide federal protections for those who are pregnant or experiencing pregnancy-related disabilities.
Businesses should review and revise, if necessary, their antidiscrimination, accommodation, and other policies applicable to employees in Oregon to reflect these legislative developments.
The Oregon Bureau of Labor and Industries is likely to update its available fact sheets and workplace posters to provide materials compliant with the Act’s notice requirements. Employers can use state-published posters to satisfy the Act’s notice requirements or work with employment counsel to develop company-specific materials to distribute in advance of the January 1, 2020 deadline.