Overview. Colorado joins a growing list of states that provide specific protections to employees and applicants for health conditions related to pregnancy. The new law (HB 1438), effective August 10, 2016, requires employers to provide reasonable accommodations to employees and applicants for health conditions related to pregnancy or recovery from childbirth, unless the accommodation would impose an undue hardship on the employer’s business.
In addition, by December 8, 2016 (120 days from the effective date), employers must provide current employees with written notice of their rights under this provision. Thereafter, employers also must provide written notice of the right to be free from discriminatory or unfair employment practices under this law to every new hire at the start of their employment. Employers in Colorado also must post a written notice of rights in a conspicuous place at their business in an area accessible to employees. For more information and for a sample notice in English and Spanish, click here.
Effective Date. August 10 2016.
Details. Set forth below is a high level review of what is meant by undue hardship under the new law, employer obligations under the new law, and additional information on the notice requirements.
Undue Hardship
To determine whether the employer will be subject to an undue hardship, the law considers the nature and cost of an accommodation, the employer’s financial resources, the employer’s personnel and facilities, and the proposed accommodation’s effect on the expenses, resources, and operations of the employer. Where an employer has already provided or is required to provide a similar accommodation to other classes of employees, the law creates a rebuttable presumption that the proposed accommodation would not impose an undue hardship.
Employer Obligations
The law imposes several restrictions on employers. Employers are prohibited from:
- taking adverse action against an employee who requests or uses a reasonable accommodation;
- denying an employment opportunity to an employee or applicant based on the need for a reasonable accommodation related to pregnancy or childbirth;
- requiring an applicant or employee to accept a reasonable accommodation that she did not request or one that is unnecessary; or
- requiring an employee to take leave if another reasonable accommodation can be provided.
When an applicant or employee requests an accommodation, the employer must engage in the interactive process to determine an effective accommodation. Employers may require an employee or applicant to provide documentation from a licensed health care provider about the need for the requested accommodation. The law also provides the following examples of possible reasonable accommodations:
- more frequent or longer break periods and more frequent restroom, food, and water breaks;
- obtaining or modifying equipment or seating;
- lifting limitations;
- temporary transfer to a less strenuous position, if available;
- job restructuring;
- light duty, if available;
- assistance with manual labor; and,
- modified work schedules, with limitations on the obligations an employer must undertake.
The law makes it clear that it neither increases or decreases employees’ rights under any other law with respect to paid or unpaid leave.
Notice Requirement
Employers must provide written notice of the right to be free from discriminatory or unfair employment practices to new employees at the beginning of their employment and to existing employees within 120 days after the law takes effect. Employers must also post conspicuous notice in the workplace. The definition of unfair employment practices includes the discriminatory practices described in the new law.
Call to Action. Colorado employers should review and revise, if necessary, anti-discrimination policies and procedures or any policies and procedures concerning reasonable accommodations related to pregnancy, childbirth, or related medical conditions. As with any policy change, consider training your HR, supervisors, managers, and employees who might be involved in the reasonable accommodation process on the requirements. Finally, be prepared to provide employees with written notice of their rights under the law, and post a workplace notice describing the same.