On June 1, 2016, Colorado Gov. John Hickenlooper signed House Bill 16-1438 into law. The bill, sponsored by Democrat Faith Winter and Republican Beth Martinez Humenik, requires employers to provide reasonable accommodations to women for health conditions related to pregnancy. The law also prohibits an employer from taking adverse employment action against pregnant women who request or use such accommodations. This legislation is set to go into effect on August 10, 2016.
Specifically, the law states:
“An employer shall provide reasonable accommodations to perform the essential functions of the job to an applicant for employment or an employee for health conditions related to pregnancy or the physical recovery from childbirth, if the applicant or employee requests the reasonable accommodations, unless the accommodations would impose an undue hardship on the employer’s business … .”
House Bill 16-1438, Section 3(1)(a)(I).
Functionally, this law treats pregnancy as a disability; i.e., pregnant employees in Colorado experiencing health conditions due to pregnancy or recovery from childbirth are now entitled to Americans with Disabilities Act-like processes. Under this law, if a pregnant employee requests a pregnancy-related accommodation from her employer, the employer is obligated to engage in the interactive process with the employee to determine a reasonable accommodation, and must provide such accommodation unless it would impose an undue hardship on the employer’s business.
In delineating these requirements, the legislation is explicit about the interactive process, stating that an employer and employee “shall engage in a timely, good-faith, and interactive process to determine effective, reasonable accommodations” for the requesting employee.
The legislation further defines “reasonable accommodations” to include solutions such as:
- More frequent or longer break periods;
- More frequent restroom, food, and water breaks;
- New or modified equipment or seating;
- Limits on lifting;
- Temporary transfer;
- Job restructure;
- Light duty;
- Assistance with manual labor; and
- In limited circumstances, modified work schedules.
Finally, the legislation defines an “undue hardship” as an accommodation “requiring significant difficulty or expense to the employer.” Whether an accommodation imposes an undue hardship depends on several factors, including:
- The nature and cost of the accommodation;
- The overall financial resources of the employer;
- The overall size of the employer’s business; and
- The accommodation’s effect on the employer’s expenses, resources, or operations.
In laying out its ADA-like processes, the legislation goes one step further, attempting to expressly curtail employer paternalism toward pregnant employees. It does this by prohibiting an employer from requiring a pregnant employee to: (1) accept an accommodation she did not request; (2) accept an accommodation that is unnecessary for her to perform her job; or (3) accept an accommodation of leave if there is another reasonable option available.
Historically, pregnancy has not been accommodated as a disability by the Colorado Anti-Discrimination Act (CADA). Neither is pregnancy accommodated as a disability under the ADA. Instead, the ADA treats pregnancy as a temporary condition, akin to a broken leg, and accommodates only impairments resulting from pregnancy, such as preeclampsia or gestational diabetes. With the new law, Colorado attempts to fill a hole in the CADA and the ADA, expanding ADA-like processes to pregnant employees and preventing discrimination on the basis of such employees’ need or request for an accommodation.