Alert! Nevada Legislature Passes New Employment Law For Pregnant Workers

By Kamer Zucker Abbott

June 13, 2017

At the end of the recently concluded session, the Nevada Legislature passed and the Governor signed the Nevada Pregnant Workers' Fairness Act that applies to employers of 15 or more employees.  The Act expands an employer's obligations to accommodate pregnant female employees and applicants as well as those who are suffering from a condition related to pregnancy, childbirth, or a related medical or mental condition. While the majority of the Act's requirements do not become effective until October 1, 2017, an employer's obligation to post a notice of female employees' rights under the Act became effective when the Act was signed on June 2, 2017. The Act's notice requirements are detailed below.

Who Is Protected by the Act?

First, it is important to understand that this Act does not just cover pregnant female employees and applicants.  It also covers female employees and applicants who are suffering from a condition "relating to pregnancy, childbirth or a related medical condition."  Under this language, the Act expressly covers:

• lactation or the need to express breast milk for a nursing child
• mastitis or other lactation-related medical condition
• gestational diabetes
• pregnancy-induced hypertension
• preeclampsia
• post-partum depression
• loss or end of pregnancy and recovery from loss or end of pregnancy.

Additional conditions may also be covered by the Act.  As such, it is wise to consider this law when addressing any medical condition of a female employee or applicant.

What Does the Act Prohibit?

Except for specified exceptions, it is unlawful for an employer to do the following:

• Refuse to provide a reasonable accommodation to a female employee or applicant upon her request for an accommodation for a condition relating to pregnancy, childbirth or a related medical condition, unless it would cause an "undue hardship."

• Take an adverse employment action because the female employee requests or uses a reasonable accommodation under the Act which may include, without limitation, refusing to promote the employee, requiring the employee to transfer to another position, refusing to reinstate the employee to the same or an equivalent position upon return to work, or "taking any other action which affects the terms or conditions of employment in a manner which is not desired by the employee." 

• Deny employment opportunity to an "otherwise qualified" female employee or applicant based on her need for a reasonable accommodation under the Act. 

• Require a female employee or applicant to accept an accommodation "that the employee or applicant did not request or chooses not to accept." 

• Require a female employee to take leave if a reasonable accommodation is available that would allow the employee to continue to work.

Similar to the Americans with Disabilities Act, the Act does provide an exception for an employer to engage in such conduct because of a "bona fide occupational qualification."  Additionally, there is a carve-out exception to certain of these prohibitions for employers who are considered licensed contractors (builders) under Nevada Revised Statutes 624.

What Does the Act Require?

If a female employee requests an accommodation for a condition covered by the Act, she and the employer must engage in an interactive, timely, and good faith process to determine an effective, reasonable accommodation. If a physician recommends a specific accommodation, the employer may request an "explanatory statement." An accommodation may consist of "a change in the work environment," "a modification to the application process," or a change in "the manner in which things are customarily carried out."  A reasonable accommodation may include modifying equipment or providing different seating; revising break schedules or the frequency or duration of breaks; providing space in an area other than a bathroom that may be used for expressing breast milk; providing assistance with manual labor if the manual labor is incidental to the primary work duties of the employee; authorizing light duty; temporarily transferring the employee to a less strenuous or hazardous position; or restructuring a position or providing a modified work schedule.

An employer is not required to create a new position that it would not have otherwise created, unless the employer has created or would create such a position to accommodate other classes of employees (such as those suffering from a worker's compensation injury).  An employer is also not required to discharge any employee, transfer any employee with more seniority or promote any employee who is not qualified to perform the job, unless the employer has taken or would take such an action to accommodate other classes of employees.

The Act makes it difficult to refuse an accommodation by requiring the employer to prove that the accommodation would impose an undue burden.  In defining "undue burden," the Act focuses upon the size and financial condition of the employer and the cost of the accommodation.  If an employer provides or would be required to provide a "similar" accommodation to a "similarly situated employee," the accommodation will not likely constitute an undue burden.

What Notice Obligations Does the Act Impose?

Finally, the Act imposes three notice requirements upon employers:

1.  Employers must post a written or electronic notice to female employees of their rights under Nevada Revised Statute 613.335 (existing Nevada law governing leave for pregnant employees) and the Nevada Pregnant Workers' Fairness Act.  The notice must include a statement that a female employee has the right to a reasonable accommodation for a condition of the employee relating to pregnancy, childbirth or a related medical condition.

2.  Employers must provide this notice to a new female employee upon commencement of her employment.

3.  Employers must reissue the notice to a female employee within 10 days after she notifies her immediate supervisor that she is pregnant.

What Do We Recommend?

We recommend companies engage in the following proactive steps:

• Develop and post a notice regarding this Act.
• Ensure that by October 1, 2017, new female employees receive a copy of this notice upon commencement of employment and within 10 days after an employee notifies her immediate supervisor that she is pregnant.
• Review your employee handbooks and policies to incorporate the Act's requirements.
• Include the Act's requirements in your training of supervisors, including line supervisors.
• Ascertain now whether you have an area that is private, and not a bathroom, where a female employee can express breast milk.

We are available to address your questions regarding the Nevada Pregnant Workers' Fairness Act and these recommendations.  We are developing a notice posting employers can use to meet the Act's requirements; it should be available to clients upon request by the end of this week.