While Congress is considering a bill that would require employers to accommodate pregnant workers, many states are strengthening state laws that forbid discrimination against pregnant women and adding a requirement that employers accommodate pregnant women.
Oregon is one of the states that recently approved pregnancy accommodation laws, which went into effect Jan. 1, 2020.
Oregon enacts Employer Accommodation for Pregnancy Act
Existing state law forbids employers from discriminating against pregnant employees.
In addition, pregnant workers also have protection under the Oregon Family Leave Act, which provides up to 12 weeks of protected leave to eligible employees of covered employers, and, in instances of disability resulting from pregnancy, an employee may also qualify for up to an additional 12 weeks of leave.
However, Gov. Kate Brown signed a bill in late May that requires employers to do more for pregnant workers. The Employer Accommodation for Pregnancy Act applies to employers with 6 or more employees. It requires that employers provide reasonable accommodations to employees and job applicants who have pregnancy-related limitations, including lactation unless doing so would impose an undue hardship.
Under the new law, an accommodation would be considered an undue hardship if it requires “significant difficulty or expense.” To determine if significant difficulty or expense exists, an employer must consider the nature and cost of the accommodation, the financial resources, and size of the facility providing the accommodation, the financial resources and size of the employer, and the type of operations conducted by the employer.
Reasonable accommodations include:
- Acquisition or modification of equipment or devices
- More frequent or longer break periods or periodic rest
- Assistance with manual labor
- Modification of work schedules or job assignments
The measure also makes it unlawful for employers to deny employment to a job applicant or employee because the employer must make a reasonable accommodation because of pregnancy, childbirth, or a related medical condition, including lactation.
Employers cannot discriminate or retaliate against an applicant or an employee if the applicant or employee has asked about, requested, or used a reasonable accommodation.
An employer cannot require an applicant or an employee to accept a reasonable accommodation that is unnecessary to perform the essential duties of the job or to accept a reasonable accommodation if the applicant or employee does not have a known limitation.
An employer cannot require an employee to take family leave, or any other leave if the employer can make reasonable accommodation to the known limitations.
There are also posting and notice requirements. Employers must post signs in a conspicuous location that informs employees of their rights under the legal act. Employers also must provide a written copy of the notice to new employees at the time of hire; to existing employees by June 29, 2020, and within 10 days to any employee who informs the employer of the employee’s pregnancy.
The statute expressly provides that aggrieved employees can file a civil action in civil court. Remedies include job reinstatement, backpay, the hiring of employees, and reasonable attorney’s fees for trial and appeal.
Penalties for noncompliance
Civil penalties are allowed under the law. Employers can be assessed $50,000 for a first violation and a maximum of $100,000 for subsequent violations.
Oregon strengths lactation law
In another expansion of legal protections for working mothers. Oregon lawmakers also approved changes to state laws that affect employees who have a need to express breastmilk. Under current state law, employers with 25 or more employees must allow employees to take reasonable unpaid breaks during each 4-hour shift to breastfeed or pump for up to 1 year after the child’s birth.
Under a law that became effective Sept. 29, 2019, Oregon employers with 10 or more employees must provide a reasonable rest period to express milk each time the employee has a need to do so unless doing so presents an undue hardship on the operations of the business. The new law does not limit how long an employer is required to accommodate a nursing mother.
“Undue hardship” is defined as a “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”
This language tracks with existing rules and the language used to evaluate reasonable accommodations for disability.
In addition, Oregon employees are still required to make reasonable efforts to provide an appropriate location for employees to express milk in private and must allow employees to bring a cooler or other insulated container to store the expressed milk. If an employer allows employees to use a refrigerator on-site for personal use, the employee must be permitted to use the available refrigeration to store the milk.
This is similar to the break time for nursing mothers’ requirements found in the federal Fair Labor Standards Act.
Under an amendment to the Fair Labor Standards Act 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 1 year after the birth of a child.