United States: Expecting A Big Change: Nevadas New Pregnant Workers Fairness Act

The state legislature recently enacted the Nevada Pregnant Workers' Fairness Act (NPWFA) to expand the scope of protection for employees and applicants. The NPWFA is based on the federal Pregnancy Discrimination Act (PDA), and is also strongly influenced by the American with Disabilities Act (ADA). It applies to employers in the state with 15 or more employees, as well as to state and local governments. Although many portions of the Act are not effective until October 1, 2017, the notice provisions took effect on June 2. If you are not yet familiar with this new law, the time to educate yourself is now.

How It Differs From Federal Law

Most employers are familiar with the federal Pregnancy Discrimination Act (PDA), which bans discrimination based on pregnancy, childbirth, or related medical conditions. In general, the PDA does not require employers to provide a reasonable accommodation if they do not provide the same accommodation to the majority of other non-pregnant employees. In the 2015 case of Young v. United Parcel Service, the U.S. Supreme Court held that an employee can provide a violation of the PDA by showing that she belongs to a protected class, she sought an accommodation, the employer did not accommodate her, and the employer accommodated other similarly situated employees.

Most employers are also familiar with the ADA. However, the ADA often does not come into play with pregnant employees, because pregnancy itself does not qualify as a disability. Instead, the ADA would only protect pregnant employees and applicants in certain situations, such as if the mother develops pregnancy-related medical complications.

The new Nevada law, however, expands the scope of protection for employees and applicants beyond what it currently provided at the federal level by virtue of the ADA or PDA. Specifically, the NPWFA incorporates standards for reasonable accommodations analogous to those of the ADA.

New Law Requires Reasonable Accommodations

Under the new law, employers cannot take an adverse action against an employee, refuse to provide a reasonable accommodation to an employee or applicant, or deny an employment opportunity to an otherwise qualified employee or applicant for a discriminatory reason. In addition, employers cannot require an employee or applicant to accept an accommodation that she either declines or did not request. Nor can employers require an employee to take leave from employment if a reasonable accommodation is available.

However, it is not unlawful for employers to treat an employee less favorably if a bona fide occupational qualification (BFOQ) justifies it. Thus, the new Nevada law provides employers with the BFOQ defense found under the PDA, which requires employers to establish a direct relationship between pregnancy and the ability to perform the pertinent job.

Interactive Process Required

If an employee requests an accommodation, she and the employer must engage in a timely, good faith, and interactive process to determine an effective, reasonable accommodation. The main focus of this process is to ensure the employee has equal employment opportunities, such as the ability to perform the essential function of the position and to have the same benefits and privileges available to other employees. Likewise, for an applicant, the main focus is to ensure that the application process permits her to be considered for employment.

Types Of Reasonable Accommodations

Under the NPWFA, a reasonable accommodation may include, but is not limited to:

  • Modifying equipment or providing different seating;
  • Revising break schedules, which may include revising the frequency or duration of breaks;
  • Providing space in an area other than a bathroom for expressing breast milk;
  • Providing assistance with manual labor if it is incidental to the primary work duties;
  • Authorizing light duty;
  • Temporarily transferring the employee to a less strenuous or hazardous position; or
  • Restructuring a position or providing a modified work schedule.

However, employers are not required to take the following actions as reasonable accommodations: creating a new position that the employer would not have otherwise created, unless the employer has or would do so to accommodate other classes of employees; or discharging any employee, transferring any employee with more seniority, or promoting any employee who is unqualified to perform the job, unless the employer has or would do so to accommodate other classes of employees.

An employer may require an employee to provide an explanatory statement from the employee's physician concerning the specific accommodation that the physician recommends.

Undue Hardship

If an employee or applicant makes a prima facie showing that she requested a reasonable accommodation and the employer refused to provide or attempt to provide the accommodation, the burden of proof shifts to the employer to show that providing the accommodation would impose an "undue hardship."

The definition of an undue hardship is similar to its definition under the ADA. To prove an undue hardship under the NPWFA, the employer must show that the accommodation is significantly difficult to provide or expensive due to, but not limited to, the following factors:

  • The nature and cost of the accommodation;
  • The overall financial resources of the employer;
  • The overall size of the business of the employer with respect to the number of employees, and the number, type, and location of the available facilities; and
  • The effect of the accommodation on the expenses and resources of the employer or the effect of the accommodation on the operations of the employer.

If there is evidence the employer provides or would be required to provide a similar accommodation to a similarly situated employee or applicant, there is a rebuttable presumption that the accommodation does not impose an undue hardship.

Enforcement

A violation of the NPWFA constitutes an unlawful employment practice under NRS Chapter 613. Any employee or applicant injured by such a practice is authorized to file a complaint with the Nevada Equal Rights Commission (NERC). After the NERC adjudicates the complaint, the employee or applicant is entitled to seek redress through a private lawsuit in a district court.

Lactation Breaks

In a separate law, covered in another Legal Alert, the Nevada Legislature enacted specific protections for nursing mothers. This separate law requires employers to provide nursing mothers with a child under 1 year of age with: (1) reasonable break time, with or without compensation, for the employee to express breast milk as needed; and (2) a place, other than a bathroom, that is reasonably free from dirt or pollution, protected from the view of others, and free from intrusion by others.

As discussed above, under the NPWFA, employees are entitled to request a reasonable accommodation of a place, other than a bathroom, in which to express breast milk. This raises an open question of whether employees can argue that they are entitled to a more expansive lactation break, framed as a request for a reasonable accommodation, beyond the requirements of the separate law.

For example, an employee theoretically may request to express breast milk for a child over one year of age or for an amount of time that seems excessive. However, employers can likely rely on the requirements for lactation breaks from the separate law to provide guidance on what is considered reasonable. Thus, if employers are already complying with the separate law, they can demonstrate that they are acting in good faith to provide requisite protections to employees. Further, employers can limit the unreasonableness of an employee's request by demonstrating an undue hardship.

Moving forward, employers should be aware of these overlapping laws and expect legal disputes to arise in the future over how they intersect. For example, employers with at least 15 employees but fewer than 50 employees will face a particular predicament. The separate law for nursing mothers exempts employers who have fewer than 50 employees and can demonstrate an undue hardship; however, the NPWFA requires employers with at least 15 employees to provide reasonable accommodations. Therefore, an employer who is normally exempt from the stringent requirements of the separate law may still need to provide a similar accommodation under the NPWFA, as long as the accommodation does not impose an undue hardship.

Exemption For Contractors

Employers who qualify as contractors under NRS Chapter 624 are not subject to certain requirements of the NPWFA. In particular, contractors do not need to grant an employee's request for a reasonable accommodation to provide a place, other than a bathroom, to express breast milk if the employee works at a construction job site located over three miles from the employer's regular place of business. Additionally, contractors are not subject to the prohibitions against requiring an employee to take leave from employment or accept an accommodation, if the employee's work duties include manual labor.

Notice Provisions

Although most provisions of the NPWFA take effect on October 1, 2017, there is an important part of the NPWFA that has already taken effect. Starting June 2, 2017, Nevada employers must provide employees with notice of the NPWFA. The notice may be electronic or in writing, and it must include the following information:

  • Employees have the right to be free from discriminatory or unlawful employment practices pursuant to NRS 613.335 and sections 2 to 8, inclusive, of the NPWFA; and
  • A female employee has the right to a reasonable accommodation for a condition relating to pregnancy, childbirth, or a related medical condition.

Employers must post this notice in a conspicuous place at their place of business, in an area accessible to employees. It also must be provided to a new employee at the beginning of employment, and within 10 days to any employee who notifies her immediate supervisor that she is pregnant.

Action Needed

The notice provisions of the NPWFA require immediate attention. If you have not already done so, you should provide your employees with notice informing them of the NPWFA. A written copy of this notice should be posted conspicuously in your workplace as soon as possible. You should also consider including this notice in the handbook you distribute to new employees, and give a copy of the notice to employees who notify their immediate supervisor of their pregnancy.

You should also consider the individual needs of your company when determining whether printing out copies of the notice, sending the notice via email, or uploading the notice on your company's intranet would be the most efficient method of distribution. Finally, you should consider asking your employees to confirm in writing that they have read and understood the notice. We have prepared a sample notice, which we are happy to provide to clients upon request.

To prepare for compliance with the rest of the law by October 1, 2017, you should review your policies and handbooks to acknowledge the existence of the NPWFA and to ensure that proper procedures are in place for employees and applicants. Employers who are already familiar with the PDA and ADA will find that they are similar in nature to the NPWFA, which will render substantial changes in language unnecessary. However, it is important to remember that the Nevada law expands the scope of protection for employees and applicants beyond what it currently is on the federal level.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Turner Padget Graham and Laney P.A.
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Turner Padget Graham and Laney P.A.
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions