On June 1, 2016, Governor John Hickenlooper signed House Bill 16-1438, a law that amends the Colorado Anti-Discrimination Act ("CADA") by expanding employers' responsibilities to provide reasonable accommodations to pregnant employees and applicants.

Reasonable Accommodations Requirements

The law, which formally goes into effect on August 10, 2016, requires employers to provide reasonable accommodations, upon request, to employees and applicants for "health conditions related to pregnancy or the physical recovery from childbirth," as long as doing so will not result in an undue hardship. The law lists several examples of possible reasonable accommodations, such as providing more frequent or longer breaks (including breaks to use the restroom, for food, or water), temporary transfer to a less hazardous or strenuous position, job restructuring, light duty, etc.

The law does not, however, require employers to hire additional employees that it otherwise would not have hired, terminate, transfer, or promote an employee, create a light duty position (unless such positions would be provided for other equivalent employees), or provide paid leave beyond which it would normally provide to similarly situated employees.

While offering reasonable accommodations to pregnant employees and applicants may seem like common sense to many employers, the new law has several, very specific requirements that employers must meet. First, employers cannot require pregnant employees or applicants to accept an accommodation that they have not requested or that is unnecessary for them to perform the essential functions of their job. Second, employers cannot force a pregnant employee to take a leave of absence if an alternative reasonable accommodation exists.

Additionally, the law notes that an employer's provision of a similar reasonable accommodation "to other classes of employees creates a rebuttable presumption that the accommodation does not impose an undue hardship." Therefore, if an employer provides a certain accommodation to a non-pregnant employee with similar work restrictions, the law will presume that the employer can provide the same accommodation to the pregnant employee. If an employer fails to provide the same accommodation, it will have the burden of proving that its reason was not discriminatory in violation of the new law.

Interactive Process Requirement

Most importantly, however, is the new law's requirement that an employer engage the pregnant employee or applicant in a "timely, good-faith, and interactive process to determine effective, reasonable accommodations." While many employers may do this anyway, it is typically not treated as a particularly formal process and is rarely documented. It will be critical that, moving forward, employers train their managers and Human Resources staff on how to properly conduct and document their interactive process. Doing so may help avoid a potential punitive damages award if challenged in court. The law states that a court may not award punitive damages in a failure to accommodate case where an employer can demonstrate "good faith efforts to identify and make a reasonable accommodation" that would provide a pregnant employee "with an equally effective opportunity and would not cause an undue hardship" on the employer's business operations.

Notice Requirements

Employers are required to provide written notice of the law's protections to new employees upon hire and to existing employees within 120 days of the law's effective date (or no later than December 8, 2016).

Recommended Next Steps

To prepare for their new obligations under this law, employers should:

  • Prepare a written notice detailing an employee's right to be free from discriminatory and unfair employment practices, pursuant to the new law
  • Update employee handbooks to provide information about the employer's reasonable accommodation process
  • Establish a process for handling accommodation requests and train supervisors and Human Resources staff about how to engage in the interactive process and document their attempts appropriately
  • Review and update job descriptions to ensure they adequately reflect a position's current essential functions

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