On June 25, 2015, the Rhode Island General Assembly passed and Governor Gina M. Raimondo signed legislation making it an unlawful employment practice under the state’s Fair Employment Practices Act for an employer to refuse to reasonably accommodate an employee’s or prospective employee’s condition “related to pregnancy, childbirth, or related medical conditions.” The new statute, G.L. § 28-5-7.4, expressly includes lactation or the need to express breast milk for a nursing child as a covered “related medical condition.” It also provides examples of reasonable accommodations, including frequent or longer breaks, time off to recover from childbirth, appropriate seating, less strenuous duties, break time with a private non-bathroom space for expressing breast milk, and a modified work schedule. Notably, an employer may not require an employee to take a leave of absence from work if another reasonable accommodation can be provided. An employer is not required to accommodate a covered employee if it can show that doing so would cause an undue hardship on the employer’s program, enterprise, or business—a determination that depends heavily upon the employer’s size and resources.
The new law also requires that employers post and provide notice of the law’s protections: (i) to all new employees upon the commencement of their employment, (ii) to all current employees on or before October 23, 2015, and (iii) within 10 days of any employee notifying her employer of her pregnancy. The Rhode Island Commission for Human Rights has produced a standard poster that employers may use to notify employees of their rights.
While discrimination on the basis of pregnancy is already considered a form of gender discrimination under both state and federal law, the new Rhode Island law makes it an affirmative requirement that employers provide reasonable accommodations for conditions related to pregnancy and childbirth. The law goes one step beyond the Supreme Court of the United States’ decision in Young v. United Parcel Service, Inc., which found that an employee can demonstrate pregnancy discrimination under federal law by showing that an employer denied her request for a pregnancy-related accommodation while at the same time accommodating other employees “similar in their ability or inability to work.” Under the new law, however, Rhode Island employers must provide reasonable accommodations for pregnancy and childbirth-related conditions regardless of how the employer accommodates non-pregnancy-related conditions.
The new law also goes further than the Rhode Island Nursing Working Mothers Act, which made it optional for an employer to provide a break but required “reasonable efforts” on the part of employers to provide a private area to express breast milk. In 2010, the passage of the Affordable Care Act (ACA) imposed these requirements on all employers covered under the federal Fair Labor Standards Act. Rhode Island’s new statute further expands the reach of the ACA by imposing these requirements on all employers with four or more employees.
Employers should ensure they comply with the new law’s notice and posting requirements and confirm that they are providing an acceptable space for nursing mothers to express breast milk. Employers should also note that the new law presumes that accommodations provided to employees with non-pregnancy related conditions do not present an undue hardship in the context of a pregnancy-related accommodation unless the employer can show some distinction exists between the earlier accommodation and the pregnancy-related one that was requested.