June 19, 2017 | Category: Discrimination, Employment, Legislative Updates | Tags: , ,

Nevada Pregnant Workers’ Fairness Act Goes Into Effect October 1st

On June 2, 2017, Governor Sandoval signed the Nevada Pregnant Workers’ Fairness Act into law. The Nevada Pregnant Workers’ Fairness Act requires employers with 15 or more employees to treat female employees and applicants for employment who are affected by pregnancy, childbirth, or related medical conditions the same as other employees and applicants who have similar abilities or limitations. The Act goes into effect on October 1, 2017.

Unlawful Employment Practices Related to Pregnancy, Childbirth, or Related Medical Condition

The Nevada Pregnant Workers’ Fairness Act makes certain actions by an employer unlawful as they relate to pregnancy, childbirth, or a related medical condition. It is an unlawful employment practice for an employer to:

(1) Refuse to provide a reasonable accommodation to a female employee or applicant for employment upon request for a condition relating to pregnancy, childbirth, or a related medical condition, unless the accommodation would impose an undue hardship on the business of the employer;

(2) Take an adverse employment action against a female employee because the employee requests or uses a reasonable accommodation for a condition relating to pregnancy, childbirth, or a related medical condition;

(3) Deny an employment opportunity to an otherwise qualified female employee or applicant for employment based on the need of the employee or applicant for a reasonable accommodation for a condition relating to pregnancy, childbirth, or a related medical condition;

(4) Require a female employee or applicant for employment who is affected by a condition relating 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; and

(5) Require a female employee who is affected by a condition relating to pregnancy, childbirth, or a related medical condition to take leave from employment is a reasonable accommodation for any such condition is available that would allow the employee to continue to work.

It should be noted that it is not considered an unlawful employment practice is an employer takes any of the actions above if it is based on a bona fide occupational qualification. Further, an employer is permitted to require a female employee to provide a statement from her physician concerning the accommodation recommended by the physician.

If a female employee requests an accommodation for a condition relating to pregnancy, childbirth, or a related medical condition, the employer and employee must engage in a timely, good faith, and interactive process to determine an effective, reasonable accommodation. A reasonable accommodation for a female applicant for employment may include modification of the application process or the manner in which things are customarily done to allow the applicant to be considered for employment or hired for the position.

Reasonable Accommodation Required Unless Undue Hardship to Employer

Employers will, in most cases, be required to provide a reasonable accommodation for a female employee or applicant for employment who requests a reasonable accommodation due to a condition relating to pregnancy, childbirth, or a related medical condition. However, if the employer can demonstrate that providing such an accommodation would impose an undue hardship on the employer, the employer may not be required to provide the requested accommodation. The employer should nevertheless engage in the interactive process in good faith.

So what is “undue hardship”? To demonstrate undue hardship, the employer must demonstrate that the accommodation is significantly difficult to provide or expensive considering (1) the nature or cost of the accommodation, (2) the overall financial resources of the employer, (3) the overall size of the business, and (4) the effect the accommodation on the expenses and resources of the employer or the effect of the accommodation on the operations of the employer. However, if the employer provides or would be required to provide a similar accommodation to a similarly situated employee or applicant for employment, the presumption will be that the accommodation does not impose an undue hardship on the employer.

Notice Requirement for Employers

Beginning June 2, 2017, when the bill was signed into law, Nevada employers are required to provide notice to employees of their rights under the Nevada Pregnant Workers’ Fairness Act. The notice must be provided to new employees upon beginning employment with the employer and within 10 days after an employee notifies her immediate supervisor of her pregnancy. The notice must include a statement that: (1) she has the right to be free from discriminatory or unlawful employment practices pursuant to the Nevada Pregnant Workers’ Fairness Act and (2) she has the right to a reasonable accommodation for a condition relating to pregnancy, childbirth, or a related medical condition.

Employers will also be required to post the notice in a conspicuous  place at their business in an area which is accessible to employees. As of today, the Nevada Equal Rights Commission, the state agency charged with enforcing this Act, has not issued a sample notice for employers to use. The Nevada Association of Employers has developed a sample notice for employers to use in the interim. The sample notice can be downloaded from Members Content.

The Nevada Association of Employers (NAE) is uniquely situated to keep our members appraised for what is happening at the state and federal level. We monitor legislative process, administrative policies, and proposed agency rules to ensure our members receive accurate and up-to-date information regarding their obligations as employers in Nevada. For more information about NAE and what we do for Nevada employers, visit our website. If you are a Nevada employer interested in membership, please contact membership@nevadaemployers.org or join today!