The Kentucky Pregnant Workers Act (the “Act”) went into effect on June 27, 2019. The Act requires qualifying employers to go beyond what may or may not be required of them by other laws. Specifically, the Act requires all Kentucky employers with 15 or more employees (for 20 or more calendar weeks) to provide reasonable accommodations for an employee’s pregnancy, childbirth, and related medical conditions. It is not a novel concept to recognize particular federal and state laws prohibit employers from discriminating against a pregnant employee or interfering with requests for leave by a pregnant employee. However, some of these statutes, such as the Family Medical Leave Act, do not apply to all employers or employees. Now, qualifying Kentucky employers must consider and comply with requirements to make reasonable accommodations for their employee’s pregnancy, childbirth or related medical conditions.
The Kentucky Civil Rights Act sets forth the statutory mandates against discrimination for individuals in protected classes, including discrimination based on a disability, as well as the requirements for reasonable accommodations for individuals with disabilities. When evaluating whether an employer has discriminated against an employee based on a disability, the same definition of an employer applies (15 or more employees in each working day for each of twenty or more calendar weeks). However, the Kentucky Civil Rights Act’s definition of ‘employer’ for the purpose of determining discrimination for other protected classes is different and applies to anyone with 8 or more employees.
The updated definition of “reasonable accommodations” under the Act expands the prior definition provided in the Kentucky Civil Rights Act. The updated definition includes reasonable accommodations specific to an employee’s particular limitations due to pregnancy, childbirth, and related medical conditions including, but not be limited to:
- more frequent or longer breaks;
- time off to recover from childbirth;
- acquisition or modification of equipment;
- appropriate seating;
- temporary transfer to a less strenuous or less hazardous position;
- job restructuring;
- light duty;
- modified work schedule; and
- private space that is not a bathroom for expressing breast milk.
Rather unique to the Act is a specific requirement to provide a lactation accommodation due to the need to express breast milk along with the requirement to provide private space, other than a bathroom, for nursing employees.
The Act also dictates when determining appropriate and reasonable accommodations the following matters must be considered:
- 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 under hardship on the employer.
While the Act specifically requires the employer and employee “engage in a timely, good faith, and interactive process to determine effective reasonable accommodations;” such discussions should be standard practice. Any discussion and evaluation of any employee’s request for a reasonable accommodation for any disability should involve a timely and interactive process with the employee to determine the appropriate and reasonable accommodation that works for both parties.
An employer’s failure to reasonably accommodate an employee’s pregnancy, childbirth, and related medical conditions is deemed an unlawful employment practice under the Act, unless the employer can demonstrate undue hardship. Undue hardship means the requested accommodation would require significant difficulty or expense, and is determined by evaluating a number of factors. Those factors include, but are not limited to, cost, financial resources, size of the facility, number of overall employees, and impact on the employer. When specifically evaluating a reasonable accommodation for pregnancy, childbirth, and related medical conditions, undue hardship also considers the duration of the accommodation and whether similar accommodations are given to other employees for other reasons or by policy.
The Act also requires Kentucky employers provide a written notice to its employees regarding their right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions, including the right to reasonable accommodations. This notice must be provided to:
- new employees at the commencement of employment, and
- existing employees not later than 30 days after the effective date of the Act (or by July 27, 2019).
And, Kentucky employers must post a written notice of the same right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions, including the right to reasonable accommodations, at the employer’s place of business in an area accessible to employees. The Act does not set forth what specific penalties will be imposed for an employer’s non-compliance to the notice and posting requirements; but, it would be foolish to ignore this mandate when compliance is easily accomplished. To ensure compliance with the Act, qualifying Kentucky employers should review their existing policies, notices to new and existing employees and posted notices. If they have not been updated, employers should take immediate action since the deadline for compliance has passed. Updated posters with the required notices are available on Kentucky’s website (https://kchr.ky.gov/reports/Documents/Posters/EqualEmploymentOpportunitiyPoster2019.pdf).
Theresa Nelson’s practice focuses on representing and defending clients in complex labor & employment, commercial litigation, and general civil litigation. She represents clients in employment-related disputes including wage and hour, harassment, discrimination, disability accommodation (ADA), FMLA, wrongful or retaliatory discharge, breach of contract, restrictive covenants and intellectual property disputes. She is licensed in Kentucky and Ohio.
 KRS 344.030(2).
 KRS 344.030(2).
 KRS 344.030(2).
 KRS 344.030(6)(b).
 KRS 344.030(6)(b) and KRS 344.030(8)(b).
 KRS 344.040(1)(c).
 KRS 344.040 (1)(c).
 KRS 344.040(1)(c).
 KRS 344.030(9)(a) through (d).
 KRS 344.030(9)(e).
 KRS 344.040(3)(a) and (b).