Effective July 27, 2019, the Kentucky Pregnant Workers Act (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 novel that both federal and state law prohibit employers from discriminating against a pregnant employee based upon their pregnancy, childbirth or related medical conditions. However, now Kentucky employers must consider and comply with applicable requirements to make reasonable accommodations for their employee’s pregnancy, childbirth or related medical conditions.
The definition of “reasonable accommodations” under the Act expands the definition provided in the Kentucky Civil Rights Act to include 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.
The Act dictates when determining appropriate and reasonable accommodations:
- 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.
The Act specifically provides a lactation accommodation requirement due to the need to express breast milk and requires employers to provide private space, other than a bathroom, for their nursing employees.
An employer’s failure to reasonably accommodate an employee’s pregnancy, childbirth, and related medical conditions is an unlawful employment practice 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 including, but 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 requires Kentucky employers provide a written notice of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions, including the right to reasonable accommodations, to:
- new employees at the commencement of employment, and
- existing employees not later than 30 days after the effective date of this Act.
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.
To ensure compliance with the Act, Kentucky employers should review their established policies, notices to new and existing employees and posted notices prior to June 27, 2019.
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.