Legislation protecting the rights of pregnant and breastfeeding workers existed in several jurisdictions before this month. The Federal Pregnancy Discrimination Act mandated “reasonable accommodations” for employees affected by pregnancy, childbirth, or a related medical condition. Similarly, the Americans with Disabilities Act, prohibits discrimination against disabled workers, which includes those affected with pregnancy-related conditions, such as preeclampsia or gestational diabetes. Likewise, the Affordable Care Act, Section 7 of the Fair Labor Standards Act requires covered employers to allow employees to take unpaid breaks at work to express breast milk and to provide a clean, private place other than a bathroom for employees to express breast milk. Furthermore, at least two states in the Sixth Circuit, Ohio and Michigan, had included protections for pregnant and breastfeeding workers in their civil rights statutes.
On June 27th, however, Kentucky is the next state to see specific protections for pregnant and breastfeeding become operative law. The Pregnant Workers Act amends the Kentucky Civil Rights Act to mandate “reasonable accommodations” for pregnancy, childbirth, and related medical conditions, which includes “lactation or the need to express breast milk for a nursing child.” Like under other civil rights statutes, accommodations will be required under the employer can show that it would cause an “undue hardship” on its business or operation.
In terms of develop accommodations for employees, the Act requires the provision of notice to employees as to these protections and further mandates the following:
- An employee shall not be required to take leave from work if another reasonable accommodation can be provided;
- The employer and employee shall engage in a timely, good faith, and interactive process to determine effective reasonable accommodations; and
- If the employer has a policy to provide, would be required to provide, is currently providing, or has provided a similar accommodation to other classes of employees, then a rebuttable presumption is created that the accommodation does not impose an undue hardship on the employer.
Critically, other portions of the Kentucky Civil Rights Act remain unchanged. Thus, the private right of action and remedies, including damages and attorney fees, under KRS 344.450 are available to any employee who alleges protection under the Pregnant Workers Act. Furthermore, the Act continues to apply to any entity which employs more than 15 employees. Thus, the vast majority of schools and school districts will be responsible for complying with the Pregnant Workers Act.
More than 2/3 of teachers across the United States are women, so school districts in Kentucky should work with their board attorneys to become familiar with the requirements of the Pregnant Workers Act. As with all things, good planning and compassion go a long way in supporting employees through life transitions such as pregnancy and new parenthood. Now, the Pregnant Workers Act in Kentucky will require for workers as a matter of law.