Employers may recognize the term “reasonable accommodation” as a requirement under the Americans with Disabilities Act (“ADA”). However, Nevada employers have previously not been required to provide a reasonable accommodation to workers that request a work related accommodation for pregnancy. This is because the ADA does not cover pregnancy itself, only pregnancy related disabilities and impairments.
On June 2, 2017, Nevada Governor Brian Sandoval signed a bill into law that will considerably expand the rights of pregnant workers throughout the state, beginning on October 1, 2017. Senate Bill 253, also known as, the Nevada Pregnant Workers’ Fairness Act (the “Act”), increases protections for female workers in Nevada by making it unlawful for an employer to refuse to provide a reasonable accommodation to a female employee or applicant for any condition relating to pregnancy, childbirth or a related medical condition.
A “related medical condition” includes any medically recognized physical or mental condition related to the pregnancy, childbirth or recovery. The broad term includes conditions such as mastitis or other lactation related medical condition, pregnancy-induced hypertension, postpartum depression and much more that would not otherwise be protected under federal law.
In addition, the Act requires that the employer and the employee engage in a good faith interactive process to determine an effective reasonable accommodation upon the request for an accommodation from a female employee or applicant. This requirement is also similar to the requirements under the ADA. However, the Act differs from the ADA in that the Act prohibits an employer from requiring an employee or applicant to accept an accommodation that the applicant or employee did not request or chooses not to accept. Thus, the employer cannot refuse a particular accommodation favored by the employee where there exists more than one reasonable accommodation. Under the ADA, when there is more than one reasonable accommodation the employer can generally select which accommodation it prefers.
So what is a reasonable accommodation?
While there is no explicit definition, the Act includes a burden shifting analysis to determine whether or not the request was reasonable. More specifically, the Act imposes the initial burden on the applicant or employee to make a prima facie showing that a reasonable accommodation was requested. Once the employee establishes that a reasonable accommodation was requested, the burden shifts to the employer to prove the accommodation was not reasonable because it would have resulted in an undue hardship. Examples of a reasonable accommodation may include modifying equipment, modifying work schedule, revising break schedules and providing space other than the restroom for the expressing of milk.
Under the Act it is also unlawful to take adverse action or deny an employment opportunity to an otherwise qualified female employee or applicant due to a request for the use of a reasonable accommodation.
Although the protections are not enforced until October 1, 2017, the notice requirement is effective immediately. Employers with fifteen or more employees in Nevada are subject to the Act and are required to provide employees the following three separate written or electronic notices:
- The first notice must be provided upon the commencement of new employment;
- The second within ten days after the employee notifies the employer of her pregnancy; and
- The third by posting notice of the rights in a visible place that is accessible to all employees.
It is important to note that the Act applies to employers with fifteen for more employees working in the state of Nevada. The employer does not have to be a Nevada employer.
The Act further authorizes the NERC to investigate complaints of unlawful activity and requires the NERC to carry out programs to educate employers and others about certain rights and responsibilities.
The Nevada Pregnant Workers’ Fairness Act, along with other new and developing law issues, will be discussed at the NNHRA Employment Law Update held on October 19, 2017 at 7:15am-9:00am in Carson City, Nevada. For more information and registration for the event, visit: https://suttonhague.com/events/.