July 5, 2017

New Nevada Employment Laws – Part 1: Pregnancy Accommodations and Nursing Mothers

By Dora Lane 

The Nevada Legislature was very busy this year, passing several significant employment-related bills that will affect Nevada employers. Here is my first summary of new Nevada employment laws you’ll need to know about, addressing protections and accommodations for pregnant applicants and employees, and break times and suitable facilities for expressing breast milk.

Nevada Pregnant Workers’ Fairness Act

Senate Bill 253 created the Nevada Pregnant Workers’ Fairness Act, which applies to employers with 15 or more employees (for at least 20 weeks in the current or preceding year). This new law makes it unlawful for an employer to do any of the following (except when the action taken is based upon a bona fide occupational qualification):

  1. Refuse to provide a reasonable accommodation to a female employee or applicant, if requested, for a condition of the employee or applicant relating to pregnancy, childbirth or a related medical condition, unless the accommodation would impose an undue hardship on the business (as discussed below);
  2. Take an adverse employment action against a female employee because the employee requests or uses a reasonable accommodation for a condition of the employee related to pregnancy, childbirth or a related medical condition, such as failing to promote the employee, requiring the employee to transfer to another position, declining to reinstate the employee to the same or equivalent position after the employee comes back to work, or taking “any other action which affects the terms or conditions of employment in a manner which is not desired by the employee.”
  3. Deny an employment opportunity to a qualified female applicant or employee based on their need for a reasonable accommodation for a condition related to pregnancy, childbirth, or a related medical condition;
  4. Require a female applicant or employee who is affected by a condition related to pregnancy, childbirth, or a related medical condition to accept an accommodation that the employee or applicant did not request or chooses not to accept; and
  5. Require a female employee who is affected by a condition related to pregnancy, childbirth, or a related medical condition to take leave from employment if a reasonable accommodation for any such condition of the employee is available that would allow the employee to continue to work.

The law defines a condition related to pregnancy, childbirth, or a related medical condition as a physical or mental condition intrinsic to pregnancy or childbirth that includes, without limitation, lactation or the need to express breast milk for a nursing child. “Related medical condition” is further defined as any medically recognized physical or mental condition related to pregnancy, childbirth, or recovery from pregnancy or childbirth, such as mastitis or other lactation-related medical condition, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, loss or end of pregnancy and recovery from loss or end of pregnancy.

Pregnancy Accommodations 

In the event an applicant or employee seeks a reasonable accommodation for a pregnancy-related condition, the new law requires the employer and employee to engage in a timely, good-faith interactive process to arrive at an effective, reasonable accommodation for the applicant or employee. Examples of reasonable accommodations include: (1) modifying equipment or providing different seating; (2) revising break schedules (as to frequency or duration); (3) providing a space in an area other than a bathroom that might be used for expressing breast milk; (4) providing assistance with manual labor if the manual labor is incidental to the primary work duties of the employee; (5) authorizing light duty; (6) temporarily transferring the employee to a less strenuous or hazardous position; or (7) restructuring a position or providing a modified work schedule.

An employer is not, however, required to create a new position as an accommodation (unless the employer has created or would create such a position to accommodate other classes of employees). An employer is also not required to fire another employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job (unless the employer has taken or would take such an action to accommodate other classes of employees).

An employer seeking to show that a requested accommodation is an undue burden has to demonstrate that the accommodation is significantly difficult to provide or expensive, considering, without limitation: (1) the nature and cost of the accommodation; (2) the overall financial resources of the employer; (3) the overall size of the employer’s business with respect to the number of its employees, and the number, type, and location of available facilities; and (4) the effect the accommodation would have on the employer’s expenses and resources or on the employer’s operations. Evidence that the employer provides or would be required to provide a similar accommodation to a similarly situated applicant or employee creates a rebuttable presumption that the accommodation does not impose an undue hardship on the employer.

Notice Requirements 

SB 253 also requires employers to provide a written or electronic notice of the rights conferred by the Nevada Pregnant Workers’ Fairness Act to employees, including the right that a female employee is entitled to a reasonable accommodation for a condition related to pregnancy, childbirth, or a related medical condition. The notice must be provided upon commencement of employment and within 10 days after the employee notifies her supervisor that she is pregnant. The notice must also be posted in a conspicuous place at the employer’s business location, in an area accessible to employees.

No Retaliation 

SB 253 provides anti-retaliation protections for employees or applicants who oppose any practice made unlawful by the Nevada Pregnant Workers’ Act, or who have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing related to the Act.

Licensed Contractors Exempt From Certain Provisions 

Employers who are licensed contractors under NRS Chapter 624 are not subject to the requirement to provide suitable breast milk expression facilities (other than a bathroom) if the employee is performing work on a construction site located more than 3 miles from the employer’s regular place of business. Such employers are, instead, encouraged to provide suitable breast milk expression facilities to the extent practicable. In addition, these employers are exempt from the requirements of Sections 4 and 5 above (requiring undesired accommodations or requiring leave) if the employee’s work duties include manual labor.

Considerations For Nursing Mothers 

Under AB 113, public and private employers in Nevada are required to provide an employee who is a mother of a child under one year of age with (1) reasonable break time, with or without pay, to express breast milk as needed; and (2) a place (other than a bathroom), which is reasonably free from dirt and pollution, protected from the view of others and free from intrusion by others, where the employee may express breast milk. If break time must be compensated because of an existing collective bargaining agreement, then any break time taken to express milk must also be compensated.

This new law does not apply to private employers who employ fewer than 50 employees if the requirements it imposes would constitute an undue hardship on the employer, considering the size, financial resources, nature, and structure of the employer’s business. If a private employer determines that providing reasonable break time and suitable breast milk expression facilities will cause an undue burden on the employer, the employee and the employer may meet to agree on a reasonable alternative. If the parties cannot reach an agreement, the employer can require the employee to accept the reasonable alternative selected by the employer.

Both public and private employers are prohibited from retaliating or encouraging another to retaliate against an employee for (i) taking the time to express breast milk or using the facilities designated for such expression; or (ii) taking any action to require the employer to comply with the AB 113 requirements, including filing a complaint, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing to enforce the provisions of AB 113.

Contractors licensed under NRS Chapter 624 are not required to comply with AB 113 with regard to employees who perform work at a construction jobsite located at least 3 miles from the employer’s regular place of business.

For purposes of AB 113, “public body” means:

  • The State of Nevada or any of its agencies, instrumentalities, or corporations;
  • The Nevada System of Higher Education; or
  • Any political subdivision of the State of Nevada or any public or quasi-public corporation organized under the laws of the State of Nevada, including counties, cities, unincorporated towns, school districts, charter schools, hospital districts, irrigation districts, and other special districts.

AB 113 does not, however, apply to the Department of Corrections, which is encouraged to comply with the provisions of AB 113 to the extent practicable.

More To Come

Stay tuned for more information about additional significant employment-related laws passed in this year’s legislative session in Nevada. If you have questions about these new laws, please be sure to reach out to your Nevada employment counsel.

 

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