Tomorrow, the EEOC is expected to publish its final regulations for the Pregnant Workers Fairness Act. They were previewed in a press release earlier this week.
Since nearly every lawfirm is producing their own summary of what are, in my view, fairly straightforward implementation regulations, this post will take a different tact — namely how
As I’ve previously talked about, two new federal laws protecting pregnant workers and nursing employees are now in effect (with the protections for pregnant workers taking effect on June 27, 2023).
I want to use this post to talk about: the implications for employers in states like Connecticut that already have protections under state law
Twas the day before the night before Christmas
And all thru the law office
Not a creature was stirring
Except the employment lawyers reading the new Congressional Omnibus spending bill and looking for the employment law provisions tucked neatly inside.
In a parting gift for employers and employees, Congress passed a broad spending bill on
The laws regarding the protections owed to pregnant employees got far broader a few years back. In fact, the statutory provision prohibiting discrimination against pregnant employees has eleven key items. Rather than tackle them in separate posts, we’ll “super-size” this post to cover it all.
The main law is set forth at Conn. Gen. Stat. Sec. 46a-60(b)(7), though it is to be read in conjunction with the state’s broad anti-discrimination laws.
The key prohibitions state that it shall be a “discriminatory employment practice” for an employer (or the employer’s agent):
(A) To terminate a woman’s employment because of her pregnancy;
(B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;
(C) 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;
(D) 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;
(E) to limit, segregate or classify the employee in a way that would deprive her of employment opportunities due to her pregnancy;
(F) to discriminate against an employee or person seeking employment on the basis of her pregnancy in the terms or conditions of her employment;
(G) to 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;
Continue Reading Employment Law Checklist Project: The 11 Things You Should Know About Pregnant Employees
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:
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:
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”.
Continue Reading Two Weeks Until New Protections for Pregnant Employees Become Effective
Well, the Connecticut General Assembly ended earlier this week and, as predicted, it ended with a whimper and not a bang. Many employment law proposals failed to receive votes, including those on minimum wage and Paid FMLA, leaving many employers (and the CBIA) breathing a bit of a sigh of relief.
I’ve previously recapped
Today is the last day of the Connecticut General Assembly regular session. So it’s a good time to take a look at some of the bills pending or passed. Strangely, things seem pretty quiet on the employment law front. But after the dust settles, I’ll have another update. Here is where we stand as of
So, in yesterday’s post, I alerted you to a portion of the state’s pregnancy discrimination law that you may not have been aware of, namely Conn. Gen. Stat. Sec. 46a-60(a)(7)(E). If you haven’t read it yet, I’d suggest you do so for background for today’s post.
But after yesterday’s post, you may be wondering, is this a theoretical issue? In other words, have their been any lawsuits that employers should perk up their ears to?
As it turns out, yes.
One such case (Fenn Mfg. v. CHRO) began in 1983, when an pregnant employee complained to the CHRO that her employer, Fenn Manufacturing, had violated her rights under Section 46a-60(a)(7)(E) by refusing to permit her to work outside her normal work area whenever a co-worker at a nearby work station spray painted aircraft housings with an aerosolized paint primer containing aromatic hydrocarbons. Claiming that she had suffered ill effects when the primer was first used in her area, and that her doctor had later instructed her to avoid all exposure to aerosols and hydrocarbons during pregnancy, the pregnant employee insisted that she had come “reasonably[to] believe[ ] that continued employment in [her current]position m[ight] cause injury to [herself] or [her] fetus.‘
On that basis she contended that upon informing Fenn in writing of her belief and of the basis therefor, she became entitled under Section 46a-60(a)(7)(E) to have Fenn ‘make areasonable effort to transfer [her] to any suitable temporary position which may [then have] be [en] available‘ for her.
Claiming that at least one such ‘suitable temporary position‘was indeed ‘available‘ for her — that being a modified version of her existing position in which, during the first part of her pregnancy, Fenn had admittedly allowed her to work outside her normal work area during spray painting — the employee argued that Fenn had violated Section 46a-60(a)(7)(E) by refusing to allow her to work in that or some other suitable temporary position until the birth of her baby. As a result of Fenn’s refusal to make this accommodation, she argued, it should be required to compensate her for the wages she lost and the emotional distress she suffered when, as a result of that refusal, she was forced to leave her job to protect the health of her unborn child.
The CHRO sided with the pregnant employee and Fenn appealed. The case went all the way to the Connecticut Supreme Court on the issue of emotional distress damages, but as to the underlying discrimination claim, it was upheld without comment. Indeed, it’s the lower court’s decision that is instructive.
The court addressed what “reasonable belief” in injury means.
The text of Section 46a-60(a)(7)(E) gives much useful guidance as to what the legislature intended when it conditioned the availability of the statute’s transfer remedy on a pregnant employee’s “reasonabl[e] belie[f]” that continued employment in her current position may cause injury to herself or her fetus. Of special note in this regard are three distinct features of the statute’s triggering mechanism.
The first of these is the use of the term “belief” to describe the measure of conviction which the employee must have as to the existence of a workplace danger before she can invoke the statute’s protections. A “belief” that one faces a particular danger is clearly different from “knowledge” that such a danger exists. Whereas “knowledge,” in common parlance, is a subjective state of certitude as to a fact that is demonstrably true, “belief” is but a firm commitment to or acceptance of the truth of a given proposition, with or without the corresponding ability to prove by any standard that it is true. Though a person cannot “know” what he doubts or cannot prove, he can readily “believe” it, notwithstanding his uncertainties. Therefore, by expressly providing that an employer’s obligation to accommodate an employee under this statute is triggered by the employee’s reasonable “belief” that continued employment in her current position may cause injury to herself or her fetus, the legislature must be found to have intended that pregnant employees should be entitled the statute’s protections even when they cannot prove, by objective, scientific evidence or otherwise, that the dangers they seek to avoid are real and substantial.
In other words, this is a much lower standard for a pregnant employee to meet.Continue Reading Connecticut Law May Force Employer to Transfer Pregnant Employee
Last week, my colleagues Peter Murphy and Harrison Smith, offered to write about the latest developments in the law regarding pregnancy. The post was scheduled to come out today, when, much to our surprise, the EEOC yesterday afternoon released long-awaited guidance on the subject.
So much for that post!
After a quick rewrite last night, here’s the very latest that includes both my comments and additional sourcing from Peter & Harrison….
Just a few short weeks ago, the U.S. Supreme Court announced that next term it will once again tackle an issue that raises strong feelings in many women (and men)–how pregnant women are treated in the workplace in comparison to non-pregnant employees.
As anyone interested in employment law knows, both Congress and the EEOC have focused extensively in recent years on getting employers to provide reasonable accommodations to disabled employees. Although what constitutes a reasonable accommodation remains a difficult determination in certain circumstances, the need to engage in an interactive dialogue with disabled employees over accommodations now is well established.
What to do with pregnant employees under the Pregnancy Discrimination Act, however, has been less clear. The EEOC yesterday chimed in with new guidance on the subject.
But let’s not get ahead of ourselves. First, the background.
The Federal Courts of Appeals are split on whether, and in what situations, an employer that provides work accommodations to non-pregnant, disabled employees with work limitations must also provide work accommodations to pregnant employees who are “similar in their ability or inability to work” as the non-pregnant employees.
In the case coming to the Supreme Court, Young v. United Parcel Service, the trial court and the Fourth Circuit held that the PDA does not require employers to provide accommodations to pregnant employees.
The Fifth, Seventh and Eighth Circuits agree with the Fourth Circuit, while other courts, such as the Tenth Circuit and the Sixth Circuit, hold otherwise.
Since 2012, the EEOC has been kicking around the subject of revising its guidelines on the subject. By a 3-2 vote, the EEOC decided that it could not wait until the Supreme Court gave birth to a clarifying decision, and so yesterday the EEOC issued its final pregnancy discrimination guidelines.
Continue Reading EEOC Declines a “Pregnant” Pause; New Guidance Awaits Supreme Court Decision