Effective on June 27, 2019, Kentucky has implemented new pregnancy accommodations law for pregnant employees – consequently placing additional burdens on applicable employers – by amending the Kentucky Civil Rights Act to add the Kentucky Pregnant Workers Act (KRS 344.03 to 344.110).
What Businesses Does the Kentucky Pregnant Workers Act Apply to?
While the Kentucky Civil Rights Act applies generally to employers with eight (8) or more employees within the state in each of twenty (20) or more calendar weeks in the current or preceding calendar year, the KY Pregnant Workers Act applies only to employers with fifteen (15) or more employees within the state in each of twenty (20) or more calendar weeks in the current or preceding calendar year.
Previously, pregnant employees were protected under the Kentucky Civil Rights Act to the extent it required applicable employers to not discriminate on the basis of pregnancy. Kentucky’s new pregnancy accommodations law raises the bar by requiring eligible employers to make reasonable accommodations for pregnant employees with respect to “pregnancy, childbirth, or related medical conditions.”
What is a Reasonable Accommodation?
The Kentucky Pregnant Workers Act lists the following accommodations that may be included under this Act:
- More frequent or longer breaks
- Time off to recover from childbirth
- Acquisition or modification of equipment
- Appropriate seating,
- Temporary transfer to a less strenuous or less hazardous position,
- Job restructuring,
- Light duty,
- Modified work schedule
- Private space that is not a bathroom for expressing breast milk
Analysis of the Kentucky Pregnant Workers Act will be aided by existing state jurisprudence regarding accommodations for other disabilities contemplated by the KY Civil Rights Act (i.e. the undue hardship test), but it is likely the affirmative duties imposed on employers by the Kentucky Pregnant Workers Act will raise new and novel legal questions in the coming years as it pertains to accommodations specifically for pregnant employees. Notably, the Kentucky Pregnant Workers Act applies to employees “limited” by their pregnancy – this undefined term seems to be a lesser standard than “disabled” and will certainly require interpretation by state courts in the future.
While this is a heavily litigated area across the country, determining a reasonable accommodation generally requires employers to interactively work with employees in a timely and good faith manner. This does not necessarily require a formal request by an employee, but it may require more than one interaction, and may entail the employer suggesting the accommodation. An employer should generally aspire to exhaust all possible avenues of accommodation, work in conjunction with the employee, and keep detailed documentation of the process.
Generally, but subject to a nuanced history of court interpretation, the test for undue hardship on an employer in providing a specific accommodation will require consideration of, among other things:
- Duration of the requested accommodation.
- Employer policies and/or history of providing similar accommodations to other employees (not necessarily pregnant employees).
- Financial and practical feasibility of the requested accommodation.
Affected companies are required to provide written notice to employees by July 27, 2019. If your company is affected and has not provided such notice, it should be done immediately.
Violations of the Kentucky Pregnant Workers Act
An employer’s violation of the Kentucky Pregnant Workers Act may spur litigation. Aside from certain protections against retaliation that are afforded to an employee asserting her rights under the Kentucky Pregnant Workers Act, an employee may also seek to recover back pay, front pay, injunctive relief, compensatory damages (e.g. emotional distress or humiliation), and attorneys’ fees and costs, though not punitive damages. Unlike its federal counterpart though (Title VII of the Civil Rights Act of 1964 (Title VII), which caps damages depending on the company’s size, the Kentucky Pregnant Workers Act does not limit damages.
If you have questions regarding the interpretation and implantation of this new law, including whether this law applies to your company, it is advisable to consult an attorney with experience in employment laws and issues. The attorneys at Commonwealth Counsel Group, PLLC would be glad to help.