Nevada’s Pregnant Workers’ Fairness Act (NPWFA) expands the scope of protections provided to female employees for conditions related to pregnancy, childbirth, or a related medical condition. The NPWFA takes effect on October 1, 2017. Here are some things that employers need to know before then.
WHAT EMPLOYERS ARE COVERED UNDER THE NPWFA?
The NPWFA generally applies to Nevada employers with 15 or more employees. However, employers who are contractors licensed under NRS Chapter 624 are not subject to certain requirements of the NPWFA.
WHAT ACTIONS ARE PROHIBITED UNDER THE NPWFA?
Under the NPWFA, it is unlawful for employers to:
(a) Refuse to provide a reasonable accommodation to a female employee or applicant, upon request, for a condition related to pregnancy, childbirth, or a related medical condition, unless the accommodation would impose an undue hardship on the employer’s business.
(b) Take adverse action against a female employee because the employee requests or uses a reasonable accommodation for conditions relating to pregnancy, childbirth, or a related medical condition.
(c) Deny an employment opportunity to an otherwise qualified female employee or applicant based upon the employee or applicant’s need for a reasonable accommodation for a condition related to pregnancy, childbirth, or a related medical condition.
(d) Require a female employee or applicant who is affected by a condition related to pregnancy, childbirth, or a related medical condition to accept an accommodation that the employee or applicant did not request or chooses not to accept, or to take leave from employment if an accommodation is not available.
HOW DOES THE NPWFA DIFFER FROM EXISTING FEDERAL LAWS?
The NPWFA provides female employees with greater protections than the federal Pregnancy Discrimination Act (PDA) and the American’s with Disabilities Act (ADA). Unlike the PDA, the NPFWA requires employers to provide a reasonable accommodation to employees based on pregnancy, childbirth, or a related medical condition, even if the employer does not provide the same accommodation to the majority of other similarly-situated, non-pregnant employees. And unlike the ADA, the NPFWA provides protections regardless of whether a pregnant employee is deemed to have a pregnancy-related disability. However, the NPWFA’s standards for reasonable accommodations are analogous to those of the ADA.
WHAT TYPES OF ACCOMMODATIONS ARE REASONABLE UNDER THE NPWFA?
The NPWFA provides a non-exhaustive list of accommodations which may be reasonable, including:
- Modifying equipment or seating;
- Revising the frequency, duration, or schedule of breaks;
- Providing space in an area, other than a bathroom, for the expression of breast milk;
- Providing assistance with manual labor, if manual labor is incidental to the primary work duties of the employee;
- Authorizing light duty;
- A temporary transfer of the employee to a less hazardous or strenuous position;
- Providing a modified work schedule.
As for accommodations that would be unreasonable, the NPWFA specifies that an employer is not required to create a new position that it would not have otherwise created to accommodate an employee under the NPWFA, unless the employer has created, or would be required to create, such a position to accommodate another class of employees. Similarly, an employer is not required to discharge or transfer an employee with more seniority or promote an employee who is not qualified for the job in order to accommodate an employee under the NPWFA, unless the employer would be required to take such action to accommodate another class of employees.
WHAT SHOULD AN EMPLOYER DO IF AN EMPLOYEE OR APPLICANT REQUESTS AN ACCOMMODATION?
If an employee or applicant requests an accommodation, the NPWFA requires the employer and the employee or applicant to engage in a “timely, good faith and interactive process to determine an effective, reasonable accommodation for the employee” or applicant. The accommodation may consist of one of the reasonable accommodations cited above, or any other reasonable change in the work environment or custom that allows the employee to have an opportunity to perform the essential job functions.
WHAT IF THE ACCOMMODATION PRESENTS AN UNDUE HARDSHIP?
The NPWFA requires employers to provide a reasonable accommodation unless the accommodation presents an “undue hardship” on the business of the employer. In order to prove that an accommodation would present an undue hardship, the employer must show that the accommodation is significantly difficult to provide or significantly expensive.
As of June 2, 2017, Nevada employers must provide their employees with notice of the NPWFA. The notice must be posted in a conspicuous place in an area accessible to employees. Notice must also be provided to new employees at the beginning of employment, and within ten days to any employee who notifies her immediate supervisor that she is pregnant. The Nevada Equal Rights Commission (NERC) has issued a sample notice that is available on its website.