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New Pregnancy Accommodation Law Adopted in Colorado

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Effective August 10, 2016, Colorado employers will commit an unfair employment practice if they fail to provide a reasonable accommodation for an employee, or an applicant for employment, for health conditions related to pregnancy or physical recovery from childbirth, absent undue hardship. Colorado is the 17th state to enact this type of legislation.

Late last week, Colorado Governor John Hickenlooper signed into law HB 16-1438, now known as the Pregnant Workers Fairness Act. Under the new law, Colorado employers must engage in an interactive process to assess potential reasonable accommodations for employees and applicants related to pregnancy and childbirth.

Under federal ADA law, a healthy or normal pregnancy is not considered a disability. Only pregnancy-related impairments or complications constitute disabilities under the ADA. The Pregnant Workers Fairness Act changes this for employers in the state.

Under the new Colorado law, employers will be required to engage in “timely, good-faith, and interactive process” with employees and applicants experiencing health conditions related to pregnancy or the physical recovery from childbirth to determine reasonable accommodations. These accommodations may include transfers to a light duty position if available, longer or more frequent breaks, modified work schedules, assistance with manual labor, and alternate seating arrangements while on the job. Notably, employers may not require employees to take leave if they can provide another reasonable accommodation for the employee’s pregnancy, physical recovery from childbirth, or related condition.

The new law uses existing ADA definitions of what constitutes undue hardship, and does not require employers to provide accommodation if doing so is “an action requiring significant difficulty or expense to the employer.”

The law also prohibits the employer from taking adverse action against an employee who requests or uses a reasonable accommodation for a pregnancy-related condition.

Employers have until December 8, 2016 to provide current employees with written notice of their rights under the new law. Thereafter, employers must also provide written notice of the right to be free from discriminatory or unfair employment practices to every new hire at the start of their employment. And, like other state and federal labor laws, Colorado employers must post a written notice of rights in a conspicuous and accessible place at their business.

We encourage our Colorado members to review and update their job descriptions to verify the essential functions of all jobs within the company; update your accommodation policies and handbook with the new law so as to be in compliance; train your managers and HR department on the new law and anti-retaliation provision; prepare written notification for delivery to your employees no later than December 8, 2016; include that written notification with all new-hires on or after December 8, 2016; and post the new law in a conspicuous place on your premises that is easily accessible to all employees.

Hilary Atkins

Posted In: Government, Legal

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