By Micah Dawson
The Colorado legislature passed House Bill 16-1438 requiring Colorado employers to engage in an interactive process to assess potential reasonable accommodations for applicants and employees for conditions related to pregnancy and childbirth. The bill, expected to be signed into law by Governor Hickenlooper, will ensure that employers engage in the interactive process, provide reasonable accommodations to eligible individuals, prohibit retaliation against employees and applicants that request or use a pregnancy-related accommodation, and provide notice of employee rights under this law. Once signed by the Governor, the new law will go into effect on August 10, 2016.
Pregnancy-Related Workplace Accommodations
This law will add a new section, section 24-34-402.3, to the Colorado Anti-Discrimination Act, making it an unfair employment practice for you to fail to provide a reasonable accommodation for an applicant for employment, or an employee, for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship on your business. You also may not deny employment opportunities based on the need to make a pregnancy-related reasonable accommodation.
Interactive Accommodation Process
You will need to engage in a “timely, good-faith, and interactive process” with the applicant or employee to determine effective reasonable accommodations.
Examples of reasonable accommodations include but are not limited to:
- more frequent or longer breaks
- more frequent restroom, food and water breaks
- obtaining or modifying equipment or seating
- temporary transfer to a less strenuous or hazardous position, if available (with return to the current position after pregnancy)
- light duty, if available
- job restructuring
- limiting lifting
- assistance with manual labor, or
- modified work schedules.
In engaging in this process, you need to be sure to document your good-faith efforts to identify and make reasonable accommodations because doing so can negate punitive damages if an individual sues you for failure to make a pregnancy-related accommodation. You may require that the employee or applicant provide a note from her health care provider stating the need for a reasonable accommodation.
No Forced Accommodations or Leave
Under the new law, you may not force an applicant or employee affected by pregnancy-related conditions to accept an accommodation that she has not requested, or that is unnecessary to perform the essential function of her job. Similarly, you may not require a pregnant employee to take leave if there is another reasonable accommodation that may be provided. As stated in the legislative declaration for the bill, the intent is to keep pregnant women employed and generating income so forcing pregnant women to take time off during or after their pregnancy generally is not permitted.
Analyzing Undue Hardship Of Accommodations
Reasonable accommodations may be denied if they impose an undue hardship on your business. That requires an analysis of the following factors in order to decide whether the accommodation would require significant difficulty or expense:
- the nature and cost of the accommodation
- the overall financial resources of the employer
- the overall size of the employer’s business with respect to the number of employees and the number, type, and location of the available facilities, and
- the accommodation’s effect on expenses and resources or its impact on the operations of the employer.