For those unfamiliar with the way a lot of Connecticut laws get implemented, October 1st could seem like just another day.  (Though for my kids, they would be impressed that it was a different October 1st in 1982 that EPCOT opened at Disney World.)

But a lot of bills that are passed by the Connecticut General Assembly go into effect on October 1st each year. This year is no exception.

For employers, the biggest of these bills is the new law concerning “Pregnant Women in the Workplace”.  I’ve previously recapped the law for pregnant employees in a prior post way back in May, but because we’re getting close to implementation, it’s time for a little refresher.

Existing law makes it a discriminatory practice to:

  • To terminate a woman’s employment because of her pregnancy;
  • to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;
  • to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer;
  • to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.

Those rules remain unchanged. But the new law revises some other provisions and adds more to the protections. Effective October 1st, it will now also be unlawful to:

  • Limit, segregate or classify the pregnant employee in a way that would deprive her of employment opportunities due to her pregnancy;
  • Discriminate against an employee or job applicant on the basis of her pregnancy in the terms or conditions of her employment;
  • Fail or refuse to make a reasonable accommodation for an employee or job applicant due to her pregnancy, unless the employer can demonstrate that the accommodation would impose an undue hardship;
  • Deny employment opportunities to an employee or job applicant if the denial is due to the request for a reasonable accommodation due to her pregnancy;
  • Force an employee or job applicant affected by pregnancy to accept a reasonable accommodation if she (i) does not have known limitation related to her pregnancy, or (ii) does not require a reasonable accommodation to perform the essential duties related to her employment;
  • Require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of the leave; and
  • Retaliate against an employee in the terms, conditions or privileges of her employment based upon the employee’s request for a reasonable accommodation.

The changes don’t stop there. The new law also explains that the word “pregnancy” will also include “pregnancy, childbirth or a related condition, including but not limited to, lactation”.  It also expands the definition of “reasonable accommodation ” and “undue hardship”.

  • “Reasonable Accommodation” means, but is not limited to, being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignment, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk; and
  • “Undue Hardship” means an action requiring significant difficulty or expense when considered in light of factors such as (A) the nature and cost of the accommodation; (B) the overall financial resources of the employer; (C) the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and (D) the effect on expenses and resources or the impact otherwise of the accommodation upon the operation of the employer.

Continue Reading Two Weeks Until New Protections for Pregnant Employees Become Effective

pregnancy1On Tuesday, May 23rd, the Connecticut House of Representatives overwhelmingly passed a measure that would greatly expand the already broad anti-discrimination provision that exist under Connecticut law.  The bill, House Bill 6668, would make several substantive changes to the protections including defining what is a “reasonable accommodation” instead of leaving that determination open.

I’ve previously written extensively about the state laws covering pregnant employees before (here and here for example) so I encourage you to familiarize yourself with the current law so you can fully understand the contemplated change. But I’ll try to break it down here.

Existing law makes it a discriminatory practice to:

  • To terminate a woman’s employment because of her pregnancy;
  • to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;
  • to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer;
  • to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.

Those provisions would remain unchanged under the bill.

Existing law also makes it a discriminatory practice to:

  • fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available in any case in which an employee gives written notice of her pregnancy to her employer and the employer or pregnant employee reasonably believes that continued employment in the position held by the pregnant employee may cause injury to the employee or fetus;
  • fail or refuse to inform the pregnant employee that a transfer pursuant to subparagraph (E) of this subdivision may be appealed under the provisions of this chapter; or
  • fail or refuse to inform employees of the employer, by any reasonable means, that they must give written notice of their pregnancy in order to be eligible for transfer to a temporary position; 

The bill would delete those three rules and instead expand existing law to make it a discriminatory practice to:

  • limit, segregate or classify the employee in a way that would deprive her of employment opportunities due to her pregnancy;
  • discriminate against an employee or person seeking employment on the basis of her pregnancy in the terms or conditions of her employment;
  • fail or refuse to make a reasonable accommodation for an employee or person seeking employment due to her pregnancy, unless the employer can demonstrate that such accommodation would impose an undue hardship on such employer;
  • deny employment opportunities to an employee or person seeking employment if such denial is due to the employee’s request for a reasonable accommodation due to her pregnancy;
  • force an employee or person seeking employment affected by pregnancy to accept a reasonable accommodation if such employee or person seeking employment (i) does not have a known limitation related to her pregnancy, or (ii) does not require a reasonable accommodation to perform the essential duties related to her employment;
  • require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of such leave; and
  • retaliate against an employee in the terms, conditions or privileges of her employment based upon such employee’s request for a reasonable accommodation.

The changes don’t end there.  The bill creates definitions now for “reasonable accommodation” and “undue hardship”.

  • Under the bill, “Reasonable accommodation” means, “but shall not be limited to, being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk.”
  • And under the bill, “Undue hardship” means an action requiring significant difficulty or expense when considered in light of factors such as (A) the nature and cost of the accommodation; (B) the overall financial resources of the employer; (C) the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and (D) the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer.

Contrast that with the ADA’s definition of those terms. If passed, the confusion for employers in interpreting these phrases are going to be plentiful.  The ADA, for example, does not define it so precisely in the law and leaves it to regulations to provide further guidance.  The undue hardship definition tracks closer but still differs:

The term “reasonable accommodation” may include (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-­time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

A) In general. – The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

(B) Factors to be considered. – In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include – (i) the nature and cost of the accommodation needed under this chapter; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity

You will now have the same words mean different things.

Two other notes: First, the bill creates a broad definition of “pregnancy” by not just including the pregnancy and childbirth but also any “related condition, including, but not limited to, lactation”.   Contrast this with the federal Pregnancy Discrimination Act which defines pregnancy to just related medical conditions.

And second, the bill would create a new poster regarding pregnancy discrimination that employers would need to add to their facilities.

The CBIA initially expressed concern about this bill increasing the number of lawsuits and suggesting that “we should consider whether adequate enforcement of existing law is better than making businesses risk endlessly litigating what ‘could have been provided’ to employees in the past.”

For employers, this is a bill that warrants close attention; these have the potential to bring the most significant changes to this area of law in well over a decade.

Here’s a hypothetical: A observant Jewish worker who is a recent leg amputee comes to you seeking an “accommodation”.  She works on the candy wrapping line that requires constant supervision and is staffed by only one or two people typically.  She seeks to leave her shift 4 hours early on Fridays to observe the Jewish sabbath.  She also seeks to take frequent breaks to rest for her disability. 

Let’s call this employee, “Lucy” and use this video as an “example” of the candy-wrapping line.  

In other words, suppose “Lucy” wants an “accommodation” for both her religion and her disability.  What do you do as an employer?

As an employer, the obligations to provide an accommodation for a disability are not the same as for a religion because, while each may use the language of “accommodation”, the standards are quite different.

For a disability under the ADA, generally, employers must provide a “reasonable accommodation” so long as it doesn’t cause an “undue hardship”.  Frequent rest period may be reasonable under the circumstances, because the other person on the candy wrapping line can easily cover for the disabled employee.  (Ignore the “video” above, which still shows some difficulty even with two people.)  The cost of doing so may be something more than minimal, but it is not so difficult that the employer can’t do it.  The employer doesn’t need to hire anyone for the breaks.

For a religious belief accommodation under Title VII, the standard is slightly different. The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business.

In the hypothetical above, the employer may say that they can’t leave a candy wrapping line shift unstaffed for four hours and would need to hire someone for that shift. In that instance, the employer may argue that providing the accommodation could cause more than a minimal burden.

Two types of accommodations; two different results.

Of course, the usual warnings apply to this: Each case has different facts and what may work for one employer may not be workable for another.  Also, there may be state laws that apply different standards as well. Thus, the hypothetical above is for illustration purposes only.

But for employers who are dealing with “accommodations”, this example should suffice. Understand that there are different standards for religious belief and disability accommodations and apply them appropriately.

Otherwise, “you got some ‘splainin’ to do!”

Earlier this week, ABC News reported on the story of a woman who had severe peanut allergies who alleged that she was denied a job at a hospital because of those allergies.  I appreciated ABC News reaching out to me for comment.

The facts of the story are frankly a bit unclear, so as I noted in the piece, I couldn’t really comment on the particular situation.  But I noted that severe allergies can be a disability under the ADA in some circumstances:

Daniel Schwartz, an employment lawyer at the Shipman and Goodwin law firm and publisher of the Connecticut Employment law blog, said the ADA could be applied to a severe food allergy, but that the law is really designed to allow the employer and employee to talk about reasonable accommodations.

“If an employee with a peanut allergy was looking to be hired to work in the warehouse of a peanut butter manufacturer, that may not be realistic,” said Schwartz, who emphasized he was speaking generally because he was not working with Coleman. “A hospital may have some concerns as well. But allergies should be handled on a case by case basis. Just because an employee has a food allergy, doesn’t mean that they can’t be accommodated in some instances.”

In some instances, the employer may say that accommodating the allergy would be an “undue hardship.”  In others, it may say that the employee poses a “direct threat” to the health and safety of himself.  But in many other cases, the allergy may not be.  The point is that an employer should look at the particular circumstances to determine the best outcome.

Let’s take another example. Suppose the applicant with a peanut allergy wanted to work as a food vendor at a baseball stadium.  The types of food that the vendor can sell are randomized so that a person may sell beer one day, or peanuts the next. In that instance, a reasonable accommodation may be to take peanuts out of the rotation for the employee so that the employee doesn’t have to sell them.  It’s probably not an undue hardship.

But suppose that the applicant’s allergy is so severe that even walking around a stadium with peanuts could potentially trigger a life-threatening allergic reaction? In that situation, it might fall within the “direct threat” exception to the ADA because the employee poses a significant safety risk to himself and that’s a risk that the employer isn’t willing to take.

Late in 2012, the Department of Justice entered into a settlement agreement with Lesley University to address food allergies for students. In doing so, the DOJ created a Question and Answer sheet that further details the government’s position on the subject.

Food allergies are quite common now and employers who haven’t had to confront the issue should be prepared to address them on a case by case basis.