This week, Colorado Gov. John Hickenlooper signed House Bill 16-1438, which will become effective on August 10, 2016. This watershed state law gives pregnant workers the right to reasonable accommodation under terms similar to those in the Americans with Disabilities Act. While employers may wait years for court decisions and interpretive rules from the Colorado Civil Rights Commission, the text of the new law offers some takeaways:
- Considering that leave will be your preferred method of providing reasonable accommodation? Think again. The law has a provision that allows for leave, but only if other accommodations that allow pregnant women to continue working are unavailable.
- As with the Pregnancy Discrimination Act of 1978, pregnancy includes related medical conditions, such as recovery from childbirth. Watch out for serious, continuing conditions that may become disabilities under the ADA.
- The law also combats forced, “paternalistic” accommodations that are unrequested and unwanted by the pregnant employee, such as reassignment to a lower position at the behest of a protective manager. These are explicitly disallowed.
- Examples of reasonable accommodation include light duty and temporary transfer to less strenuous positions with an apparent guarantee to return to the original job, although creation of new positions (including light-duty positions) or hiring of new employees is not required.
- The law requires employers to post notices in conspicuous places. But new employees will need to be provided with a copy of the notice at hire starting August 10, 2016, and existing employees must be informed within 120 days. MSEC will publish sample notices for Colorado employers.
As always, MSEC attorneys are available to provide support.