Balancing pregnancy and the responsibilities of work is tough. Yet, many working pregnant women are reluctant to ask for accommodations that will make their job easier, fearing reprisal from their employers.
One estimate states that more than a quarter-million women workers in the U.S. have been denied requested pregnancy accommodations. As a result, some states attempt to fill the gap with legislation.
Kentucky is the most recent state to require that employers accommodate working expectant mothers. While existing Federal and Kentucky state law already forbid discrimination on the basis of pregnancy. But the new bill, which was signed by into law by Gov. Matt Bevin on April 9, 2019, goes further by requiring employers to accommodate mothers-to-be.
The “Kentucky Pregnant Workers Act” (KPWA) goes into effect on June 27 and amends the pre-existing Kentuck Civil Rights Act. It applies to employers with 15 or more employees, and requires that employers within the state make “reasonable accommodation” for new and expectant mothers.
Among the legally required accommodations included are:
Employers must also allow time off for pregnancy and post-pregnancy-related medical appointments.
The law has some things in common with the Americans with Disabilities Act, including the interactive process requirement. Under the Kentucky law, employers are specifically required to engage in a “timely, good-faith, interactive process to determine effective reasonable accommodations.”
The Kentucky law also creates a requirement that employers provide a private space for nursing mothers to express breast milk that is not located in a bathroom. This is similar to the break time for nursing mothers’ requirement found in the federal Fair Labor Standards Act.
Under an amendment to the Fair Labor Standards Act (FLSA) in 2010, all employers covered by the FLSA — unless they have fewer than 50 employees and can demonstrate that compliance with the provision would impose an undue hardship — must provide a suitable space and reasonable time for non-exempt nursing mothers to express breast milk in a place other than a bathroom that is shielded from view and free from intrusion from coworkers and the public for one year after the birth of a child.
The FLSA lactation space requirement does not preempt state laws if the state law provides greater protection, which the Kentucky law does. Kentucky’s pregnant workers law expands the classification of employees who must be provided the space to include exempt employees and does not place a limit on how long an employer is required to accommodate a nursing mother.
The measure has notice requirements with a timeline for each rollout. Among the requirements:
Pregnant women do have protection from discrimination under existing law. The Kentucky Civil Rights Act forbids employers from discriminating on the basis of gender, which includes pregnancy, childbirth or a related medical condition.
And the Federal Pregnancy Discrimination Act, forbids discrimination on the basis of pregnancy, childbirth, or related medical conditions as unlawful sex discrimination. However, neither law requires that employers accommodate pregnant workers.
The Kentucky Pregnant Workers Act applies to employers with 15 or more employees. The U.S. Bureau of Labor Statistics (BOL) doesn’t track the number of establishments with 1-14 employees, but it does track other segments.
There were 89,657 private industry businesses with fewer than 10 employees in Kentucky in 2018, according to the BOL. There were 13,431 businesses with 10-19 employees, so the new law will impact some of those businesses and and some it won’t. 14,701 business in Kentucky had 20 or more employees, representing approximately 13% of total businesses in Kentucky.
However, nearly 75% of the workforce in Kentucky were at businesses with more than 20 employees, based on the BOL data.
The Kentucky law contains an exception. If an employer can prove that complying with the law creates “undue hardship,” then they can refuse to comply. “Undue hardship, ” the statute says, means an “action requiring significant difficulty or expense,” when considered in light of factors such as the cost of the needed accommodation, the overall financial resources of the facility, the overall financial resources of the covered employer, as well as the duration of the requested accommodation and whether similar accommodations have been made or are being made for other employees.
If an employer has a policy to provide or has provided a similar accommodation to other employees, then a rebuttable presumption is created that the accommodation does not impose an undue hardship on the employer.
“This rebuttable presumption is sure to cause chaos for awhile, as the statute is very broadly worded,” Katherine C. Weber, an attorney in the Cincinnati, Ohio office for Jackson Lewis has commented.
The legislation seemed to have widespread support. The Courier Journal reported that groups including Greater Louisville Inc., which serves as the Chamber of Commerce for the Louisville area, Metro United Way of Louisville and the Catholic Conference of Kentucky favored the measure. And, some of the state’s Republican politicians, the Courier Journal said, described the bill as a “pro-life measure.”
Anna Baumann, Communications Director for the Kentucky Center for Economic Policy, argued before the bill’s approval, that “by supporting mothers’ attachment to the labor force, the Pregnant Workers Rights Act would not only improve maternal and infant health and familial economic security, but support a productive workforce for Kentucky businesses and our economy. Healthy workers with healthy children are more productive and have lower healthcare costs and rates of absenteeism.”
However, Kentucky Rep. Savannah Maddox voted against the bill, explaining that she was concerned that requiring accommodations for pregnant women might cause employers to avoid hiring women, the Courier Journal reported.
About half of the states and Washington, D.C. have passed pregnant workers rights’ legislation, according to information available from the U.S. Department of Labor.
This article is intended only for informational purposes. It is not a substitute for legal consultation. While we attempt to keep the information covered timely and accurate, laws and regulations are subject to change.