Colorado employers: What you need to know about pregnancy accommodation

New anti-discrimination protections for pregnant applicants and employees were signed into law by Gov. John Hickenlooper on June 1. This addition to Colorado’s Anti-discrimination Act requires employers to provide reasonable accommodations to pregnant applicants and employees to perform the essential functions of the job if the applicant or employee requests accommodation. Employers may not discriminate against workers who need, request or use reasonable accommodations.

Unlike existing state law and the federal Americans With Disabilities Act which protect individuals with “disabilities,” the new law protects individuals with “conditions related to pregnancy, childbirth, or a related condition” without requiring that the conditions be disabling.

Affirmative obligations

If an applicant or employee requests an accommodation, the employer must engage in a timely, good-faith and interactive process to determine effective, reasonable accommodations and accommodate the individual unless the accommodation would impose an undue hardship.

“Reasonable accommodation” is defined in the law by listing examples: “more frequent or longer break periods; more frequent restroom, food and water breaks; acquisition or modification of equipment or seating; limitations on lifting; temporary transfer to a less strenuous or hazardous position if available, with return tot he current position after pregnancy; job restructuring; light duty, if available; assistance with manual labor; or modified work schedules.”

The law borrows the definition of “undue hardship” used in the ADA: “an action requiring significant difficulty or expense to the employer.” Employers are not required to hire new employees; discharge an employee, transfer a more senior employee, or promote another employee not qualified to perform the new job in order to accommodate an individual.

Employers need not create a new position for the employee requesting accommodation unless a light duty position would be provided to “another equivalent employee.” Nor are employers required to provide paid leave beyond the leave that is provided to “similarly situated employees.” The terms “another equivalent employee” and “similarly situated employees” are not defined but will likely be interpreted to mean employees in similar job positions, with similar seniority, and similar restrictions on their ability to perform the essential functions of their jobs.

Prohibited actions

Employers may not take adverse action against an applicant or employee who requests, uses or needs a reasonable accommodation related to the worker’s pregnancy, physical recovery from childbirth or a related condition. The law defines “adverse action” as an action a reasonable employee would find “materially adverse such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” This is the definition of retaliation for filing a charge of discrimination, and may have been borrowed in order to incorporate the body of law that has developed over what constitutes adverse action in that situation.

The law also prohibits employers from requiring applicants or employees to accept an accommodation they have not requested or one they do not need to perform the job’s essential functions. Employers cannot require employees to take leave if they can provide another reasonable accommodation.

The law will apply to employers of one or more employees when it takes effect on Aug. 10.