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Nevada first included sex as a protected category in 1967. That year, the legislature passed A.B. No. 7, which included for the first time sex discrimination as an unlawful employment practice. Twenty-one years later, in 1989, Nevada passed legislation that required employers to provide pregnant employees the same benefits provided to other employees due to sickness or disability related to a medical condition. Fast forward another 28 years. On June 2, 2017, Gov. Brian Sandoval signed into law S.B. 253, which greatly expands the legal protections for pregnant employees.
The new law, the Nevada Pregnant Workers' Fairness Act, is actually much broader than the name implies. The act makes it an unlawful employment practice for an employer to refuse to provide a reasonable accommodation to a female employee or applicant for a condition relating to pregnancy, childbirth or a related medical condition.
It is also an unlawful employment practice to take adverse action against or deny an employment opportunity to an otherwise qualified female employee or applicant due to a request for or the use of a reasonable accommodation.
An employer, however, may take action in relation to the employee or applicant based on a bona fide occupational qualification.
Condition Relating to Pregnancy
The terms "condition relating to pregnancy, childbirth or a related medical condition" are defined to include a "physical or mental condition intrinsic to pregnancy or childbirth." This specifically includes lactation and the need to express milk for a nursing child.
As such, it arguably provides broader protections for lactating employees and imposes potentially greater requirements on the employer than the Affordable Care Act's amendments to section 7 of the Fair Labor Standards Act.
"Related medical condition" is also defined to mean "any medically recognized physical or mental condition related to the pregnancy, childbirth or recovery" from the same. The act states that this includes: mastitis or other lactation-related medical condition, gestational diabetes, pregnancy-induced hypertension, preeclampsia, and post-partum depression. It also includes the loss or end of pregnancy and the subsequent recovery. This list is not all-inclusive.
Similar to requirements under the Americans with Disabilities Act, Section 6 of the Nevada Pregnant Workers' Fairness Act requires the employer and employee to engage in a "good faith and interactive process" to determine an effective and reasonable accommodation.
This process is triggered when a female employee or applicant "requests an accommodation" for a protected condition. The employer is permitted to require a statement from the employee's physician concerning the specific accommodation recommended.
Section 6 gives examples of some possible reasonable accommodations: modifying equipment, revising break schedules and providing space other than restrooms for the expressing of milk. It also provides examples of job modifications that may be reasonable, such as assistance with manual labor (if manual labor is incidental to the employee's primary work duties), light duty and temporary transfer to less strenuous or hazardous positions. Other reasonable accommodation examples include restructuring the position and providing a modified work schedule.
The act clarifies that, in accommodating the employee, the employer is not required to create a new position or discharge or transfer any employee with more seniority unless the employer has or would take similar action to accommodate other classes of employees.
In addition, an employer may not require a female employee or applicant affected by a condition relating to pregnancy, childbirth or related medical condition to accept an accommodation that she did not request or choose.
While the employer clearly cannot force an unwanted accommodation on the employee, both have a duty under the act to engage in "good faith" in the interactive process. Exactly what this means is unclear and will probably be the subject of future litigation.
In addition, the accommodation must be reasonable. Section 7 of the act creates a burden-shifting test. If the employee or applicant makes a prima facie showing that she requested a reasonable accommodation, the burden shifts to the employer to prove undue hardship.
The bottom line is if the accommodation requested by the employee or applicant is reasonable, the employer will have to accept it.
Employers are also prohibited from requiring female employees who are affected by a condition relating to pregnancy, childbirth or related medical condition to take leave from employment if there is a reasonable accommodation that would allow the employee to continue to work.
That said, it is clear the act contemplates leave as a reasonable accommodation. In fact, Section 5 of the act includes in its definition of adverse employment action "refusing to reinstate the employee to the same or equivalent position upon return to work."
The Nevada Pregnant Worker's Fairness Act applies to employers with 15 or more employees. Employers who are contractors licensed under Chapter 624 of the Nevada Revised Statutes have a partial exemption from the act's requirements. Such employers are not required to provide a place other than a restroom to express milk if the employee is performing work at a construction job site that is located more than three miles from its regular place of business.
Contractors are also exempt from the prohibitions against requiring an employee whose work duties include manual labor to accept an accommodation or take leave from employment.
Employers subject to the act are required to provide employees three distinct written or electronic notices.
The notices must inform employees that they have the right to be free from discriminatory or unlawful employment practices pursuant to the NRS 613.335 and Sections 2-8 of the act.
The notice must also include a statement that a female employee has the right to a reasonable accommodation for a condition relating to pregnancy, childbirth or related medical condition.
The first notice must be provided to new employees on commencement of employment. The employer must provide a second notice within 10 days after the employee notifies her immediate supervisor that she is pregnant. Finally, the employer is required to post notice of these rights in a conspicuous place at its place of business and in an area accessible to employees. The notice provisions of the act are effective on June 2. The act is effective Oct. 1, for all other purposes.
Rick Roskelley is an attorney with Littler in Las Vegas. © Littler. All rights reserved. Reposted with permission.
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