With all the emphasis on the new non-compete law, many employers did not notice that the Utah Legislature passed a new law (Senate Bill 59) requiring accommodation of pregnant or breastfeeding employees. Governor Herbert signed the law in March 2016 and it is effective as of May 10, 2016.
The Utah Antidiscrimination Act had previously prohibited discrimination based on pregnancy, childbirth, or pregnancy-related conditions. The new law amends the Utah Antidiscrimination Act to also require any employer of 15 or more employees to accommodate pregnancy, childbirth, breastfeeding, and related conditions if it is “medically advisable.” The employee does not have to show that she has a disability under the Americans with Disabilities Act (ADA), only that accommodating her pregnancy, childbirth, or breastfeeding is medically advisable.
An employer cannot refuse a request for a reasonable accommodation unless it can show undue hardship, which is defined as significant difficulty or expense in relation to the size, financial resources, nature and structure of the operation.
An employer may require certification from an employee’s health care provider of the “medical advisability” of the requested accommodation. The certification only needs to provide the date the accommodation becomes medically advisable, the probable duration of the accommodation, and an “explanatory statement” as to the medical advisability. Employers may not require certifications for obvious pregnancy accommodations—more frequent restroom, food, or water breaks.
Employers are also required to provide written notice concerning an employee’s rights to reasonable accommodations for pregnancy, childbirth, breastfeeding or related conditions (a) in an employee handbook or (b) posted in a conspicuous place in the employer’s place of business.
The Utah Legislature also passed a new law (HB242) requiring public employers to provide a number of specific items to accommodate employees who are breastfeeding, including reasonable breaks, access to a clean and private room, access to an electrical outlet, and access to a refrigerator or cooler for the temporary storage of breast milk.
An employee who is denied a reasonable accommodation may file a charge of discrimination with the Utah Labor Commission and seek damages available under the Utah Antidiscrimination Act, which include reinstatement, back pay and benefits, attorney fees, and costs.
These new Utah laws were passed on the heels of some other major developments in this area. The EEOC recently released Enforcement Guidance: Pregnancy Discrimination and Related Issues and the United States Supreme Court ruled that pregnancy accommodation is required is some circumstances when it is provided to other employees. Young v. UPS, 135 S.Ct. 1338 (2015)
Takeaways:
• Employers need to update handbooks and policies to include accommodations for pregnancy, childbirth, breastfeeding, and related conditions
• Supervisors need to be trained about such requests for accommodations and what certifications they can require
• Employers need to provide notice in their handbooks or by poster by May 10, 2016
Please contact Christina Jepson if you have any questions or would like additional information.
