Senate File 2252 - Introduced SENATE FILE 2252 BY COMMITTEE ON LABOR AND BUSINESS RELATIONS (SUCCESSOR TO SF 313) (SUCCESSOR TO SF 18) A BILL FOR An Act requiring employers to provide reasonable accommodations 1 to employees based on pregnancy or childbirth and making 2 penalties applicable. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 1196SZ (3) 86 je/sc
S.F. 2252 Section 1. Section 216.2, Code 2016, is amended by adding 1 the following new subsections: 2 NEW SUBSECTION . 01. “Adverse action” means any action that 3 might dissuade a reasonable worker from engaging in activities 4 protected under this chapter. “Adverse action” includes but 5 is not limited to failing to reinstate the employee to the 6 employee’s original job or to an equivalent position with 7 equivalent pay and accumulated seniority, retirement, fringe 8 benefits, and other applicable service credits when the 9 employee’s need for a reasonable accommodation ceases. 10 NEW SUBSECTION . 14A. “ Undue hardship” means an action 11 requiring significant difficulty or expense. 12 Sec. 2. Section 216.6, subsection 2, paragraph a, Code 2016, 13 is amended to read as follows: 14 a. A written or unwritten employment policy or practice 15 which excludes from employment applicants or employees because 16 of the employee’s pregnancy is a prima facie violation of this 17 chapter . 18 Sec. 3. Section 216.6, subsection 2, Code 2016, is amended 19 by adding the following new paragraphs: 20 NEW PARAGRAPH . f. An employer shall provide to an employee 21 a private, secure, and sanitary space and break time to express 22 breast milk for a nursing child. 23 NEW PARAGRAPH . g. (1) For the purposes of this paragraph, 24 unless the context otherwise requires: 25 (a) “Reasonable accommodation” includes but is not limited 26 to more frequent or longer breaks, time off to recover 27 from childbirth, acquisition or modification of equipment, 28 performance of job duties while seated, temporary transfer to a 29 less strenuous or hazardous position, job restructuring, light 30 duty, assistance with manual labor, or modified work schedules. 31 (b) “Related medical condition” includes but is not limited 32 to lactation or the need to express breast milk for a nursing 33 child. 34 (2) It shall be an unfair or discriminatory practice for an 35 -1- LSB 1196SZ (3) 86 je/sc 1/ 7
S.F. 2252 employer to do any of the following: 1 (a) Deny a reasonable accommodation in the terms, 2 conditions, or privileges of employment to a job applicant or 3 employee based on the employee’s or applicant’s pregnancy, 4 childbirth, or related medical condition if the employee or 5 applicant requests a reasonable accommodation, unless the 6 employer can demonstrate that providing the accommodation would 7 impose an undue hardship on the employer’s program, enterprise, 8 or business. 9 (b) Retaliate or take adverse action against an employee who 10 requests or uses a reasonable accommodation pursuant to this 11 paragraph. 12 (c) Deny employment opportunities to a job applicant or 13 employee if such denial is based on the need of the employer 14 to make a reasonable accommodation to the job applicant or 15 employee pursuant to this paragraph. 16 (d) Require a job applicant or employee affected by 17 pregnancy, childbirth, or a related medical condition to accept 18 an accommodation that the applicant or employee declines to 19 accept. 20 (e) Require an employee to take employment leave if another 21 reasonable accommodation can be provided pursuant to this 22 paragraph without undue hardship to the employer. 23 (f) Make an inquiry prior to employment regarding a 24 job applicant’s pregnancy, childbirth, or related medical 25 condition. 26 (3) An employer shall engage in a timely, good-faith, and 27 interactive process with an employee to determine effective 28 reasonable accommodations pursuant to this paragraph. 29 (4) (a) An employer shall have the burden of proving undue 30 hardship under this paragraph. In making a determination of 31 undue hardship, factors to be considered by the commission 32 include but are not limited to: 33 (i) The nature and cost of the accommodation. 34 (ii) The overall financial and other resources of the 35 -2- LSB 1196SZ (3) 86 je/sc 2/ 7
S.F. 2252 employer. 1 (iii) The overall size of the business of the employer with 2 respect to the number of employees. 3 (iv) The number, type, and location of the employer’s 4 facilities. 5 (b) The fact that an employer provides or would be 6 required to provide a similar accommodation to another class 7 of employees that requires such accommodation shall create a 8 rebuttable presumption that the accommodation does not impose 9 an undue hardship on the employer. 10 (5) An employer shall post written notice in a form 11 prescribed by the commission of the right to be free from 12 discrimination in relation to pregnancy, childbirth, or a 13 related medical condition, including the right to reasonable 14 accommodations based on pregnancy, childbirth, or a related 15 medical condition, pursuant to this paragraph conspicuously 16 at the employer’s place of business in an area accessible 17 to employees. The notice shall state the employee’s right 18 to a private, secure, and sanitary space and break time to 19 express breast milk for a nursing child and shall include the 20 employer’s specific plan to meet this requirement. The notice 21 shall also be provided to the following: 22 (a) New employees at the commencement of employment. 23 (b) Existing employees by January 1, 2017. 24 (c) Any employee who notifies the employer of the employee’s 25 pregnancy within ten days of such notification. 26 (6) The commission shall develop courses of instruction 27 and conduct ongoing public education efforts as necessary to 28 inform employers, employees, employment agencies, and job 29 applicants regarding their rights and responsibilities under 30 this paragraph. 31 (7) This paragraph shall not be construed to narrow 32 or restrict any other provision of law relating to sex 33 discrimination or pregnancy, or to diminish any right or 34 responsibility thereunder. 35 -3- LSB 1196SZ (3) 86 je/sc 3/ 7
S.F. 2252 NEW PARAGRAPH . h. It is the intent of the general assembly 1 that a violation of this subsection constitutes an unfair or 2 discriminatory practice in violation of this chapter, subject 3 to the processes and remedies set forth in this chapter, and 4 further, that the burden-shifting analysis articulated by the 5 United States supreme court in McDonnell Douglas Corp. v. 6 Green, 411 U.S. 792 (1973), shall not be applicable to the 7 proper construction of this subsection. 8 EXPLANATION 9 The inclusion of this explanation does not constitute agreement with 10 the explanation’s substance by the members of the general assembly. 11 This bill prohibits an employer from denying a reasonable 12 accommodation in the terms, conditions, or privileges of 13 employment to a job applicant or employee based on the 14 employee’s or applicant’s pregnancy, childbirth, or related 15 medical condition upon request, unless the employer can 16 demonstrate that providing the accommodation would impose an 17 undue hardship on the employer. 18 The bill prohibits an employer from retaliating or taking 19 adverse action against an employee who requests or uses such a 20 reasonable accommodation. 21 The bill prohibits an employer from denying employment 22 opportunities to a job applicant or employee if such denial is 23 based on the need of the employer to make such a reasonable 24 accommodation. 25 The bill prohibits an employer from requiring a job 26 applicant or employee affected by pregnancy, childbirth, or a 27 related medical condition to accept an accommodation that the 28 applicant or employee declines to accept. 29 The bill prohibits an employer from requiring an employee 30 to take employment leave if another reasonable accommodation 31 can be provided pursuant to the bill without undue hardship to 32 the employer. 33 The bill prohibits an employer from making an inquiry 34 prior to employment regarding a job applicant’s pregnancy, 35 -4- LSB 1196SZ (3) 86 je/sc 4/ 7
S.F. 2252 childbirth, or related medical condition. 1 The bill defines “reasonable accommodation” to include but 2 not be limited to more frequent or longer breaks, time off 3 to recover from childbirth, acquisition or modification of 4 equipment, performance of job duties while seated, temporary 5 transfer to a less strenuous or hazardous position, job 6 restructuring, light duty, break time and private non-bathroom 7 space for expressing breast milk, assistance with manual labor, 8 or modified work schedules. 9 The bill defines “related medical condition” to include but 10 not be limited to lactation or the need to express breast milk 11 for a nursing child. 12 The bill defines “adverse action” as any action that might 13 dissuade a reasonable worker from engaging in activities 14 protected under Code chapter 216 and specifies that “adverse 15 action” includes but is not limited to failing to reinstate the 16 employee to the employee’s original job or to an equivalent 17 position with equivalent pay and accumulated seniority, 18 retirement, fringe benefits, and other applicable service 19 credits when the employee’s need for a reasonable accommodation 20 ceases. 21 The bill defines “undue hardship” as an action requiring 22 significant difficulty or expense. 23 The bill requires an employer to engage in a timely, 24 good-faith, and interactive process with an employee to 25 determine effective reasonable accommodations pursuant to the 26 bill. 27 The bill specifies that an employer shall have the burden 28 of proving undue hardship under the bill. The bill provides 29 a nonexclusive list of factors to be considered by the civil 30 rights commission in making such a determination. The bill 31 specifies that an employer who provides or would be required to 32 provide a similar accommodation to another class of employees 33 that requires such accommodation shall create a rebuttable 34 presumption that the accommodation does not impose an undue 35 -5- LSB 1196SZ (3) 86 je/sc 5/ 7
S.F. 2252 hardship on the employer. 1 The bill requires an employer to post written notice of the 2 right to be free from discrimination in relation to pregnancy, 3 childbirth, or a related medical condition, including the 4 right to reasonable accommodations and a private, secure, 5 and sanitary space and break time to express breast milk for 6 a nursing child, conspicuously at the employer’s place of 7 business in an area accessible to employees. The bill also 8 requires such notice to be provided to new employees, existing 9 employees by January 1, 2017, and any employee who notifies the 10 employer of the employee’s pregnancy. 11 The bill requires the commission to develop courses of 12 instruction and conduct ongoing public education efforts as 13 necessary to inform employers, employees, employment agencies, 14 and job applicants regarding their rights and responsibilities 15 under the bill. 16 The preceding provisions of the bill shall not be construed 17 to narrow or restrict any other provision of law relating to 18 sex discrimination or pregnancy, or to diminish any right or 19 responsibility thereunder. 20 The bill requires an employer to provide to an employee a 21 private, secure, and sanitary space and break time to express 22 breast milk for a nursing child. 23 Under current law, a written or unwritten employment policy 24 or practice which excludes from employment applicants or 25 employees because of the employee’s pregnancy is a prima facie 26 violation of Code chapter 216. The bill removes the phrase 27 “prima facie,” so that such employment policies or practices 28 are violations of Code chapter 216. 29 The bill states that it is the intent of the general 30 assembly that a violation of Code section 216.6, subsection 2, 31 which governs employment policies relating to pregnancy and 32 childbirth, constitutes an unfair or discriminatory practice 33 in violation of Code chapter 216, subject to the processes 34 and remedies set forth in Code chapter 216, and further, that 35 -6- LSB 1196SZ (3) 86 je/sc 6/ 7
S.F. 2252 the burden-shifting analysis articulated by the United States 1 supreme court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 2 (1973), shall not be applicable to the proper construction of 3 Code section 216.6, subsection 2. 4 Penalty provisions for discriminatory employment practices 5 are applicable to the requirements established in the bill. 6 -7- LSB 1196SZ (3) 86 je/sc 7/ 7