A new Connecticut law significantly enhances existing anti-discrimination protections for pregnant employees. “An Act Concerning Pregnant Women in the Workplace,” (the “Act”) signed into law by Governor Dannel Malloy on July 6, 2017 and effective October 1, 2017, amends the Connecticut Fair Employment Practices Act (the “CFEPA”) to modify existing protections and add a host of new protections for pregnant employees. The Act also provides broad definitions of the terms “pregnancy,” “reasonable accommodation,” and “undue hardship.”
Existing Protections for Pregnant Employees
The CFEPA already included significant protections for pregnant employees that are unaffected by the Act. Specifically, it is unlawful for an employer to:
- Terminate a woman’s employment because of her pregnancy;
- Refuse to grant a pregnant employee a reasonable leave of absence for disability as a result of her pregnancy;
- Deny an employee 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;
- 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.
New Protections for Pregnant Employees
The Act enhances these existing protections by declaring it unlawful for an employer 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 Act also provides definitions for “pregnancy,” “reasonable accommodation,” and “undue hardship.” Specifically:
- “Pregnancy” means pregnancy, childbirth or a related condition, including, but not limited to, lactation;
- “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.
The Act directs employers to provide employees with written notice “of the right to be free from discrimination in relation to pregnancy, childbirth and related conditions, including the right to a reasonable accommodation to the known limitations related to pregnancy . . . .” Employers may comply with this mandate by displaying a poster in a conspicuous place, accessible to employees, at the workplace.
Takeaways for Employers
The new protections and definitions will present a host of compliance challenges as employers, courts, and administrative agencies grapple with the boundaries of these new protections and attempt to harmonize them with existing laws. Each situation will have to be analyzed separately for compliance and to determine an appropriate accommodation if one is requested. In addition, employers must deal with the differing definitions of “pregnancy,” “reasonable accommodation,” and “undue hardship” under the CFEPA and its relevant federal counterparts, the Pregnancy Discrimination Act and the Americans with Disabilities Act (“ADA”). For example, under the federal Pregnancy Discrimination Act, pregnancy is limited to “pregnancy, childbirth, or related medical conditions” and does not include the Act’s “including, but not limited to, lactation” language. Similarly, when assessing whether a reasonable accommodation constitutes an “undue hardship,” an employer must consider the differing factors set forth under both the ADA and the CFEPA. Given the challenges associated with complying with the Act’s new requirements, consultation with experienced employment counsel is recommended.