SF 2252 (LSB 1196SZ (3) 86)

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 to employees based on pregnancy or childbirth and making penalties applicable.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 216.2, Code 2016, is amended by adding the following new subsections:
   NEW SUBSECTION.  01.  “Adverse action” means any action that might dissuade a reasonable worker from engaging in activities protected under this chapter. “Adverse action” includes but is not limited to failing to reinstate the employee to the employee’s original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits, and other applicable service credits when the employee’s need for a reasonable accommodation ceases.
   NEW SUBSECTION.  14A.  “Undue hardship” means an action requiring significant difficulty or expense.
    Sec. 2.  Section 216.6, subsection 2, paragraph a, Code 2016, is amended to read as follows:
   a.  A written or unwritten employment policy or practice which excludes from employment applicants or employees because of the employee’s pregnancy is a prima facie violation of this chapter.
    Sec. 3.  Section 216.6, subsection 2, Code 2016, is amended by adding the following new paragraphs:
   NEW PARAGRAPH.  f.  An employer shall provide to an employee a private, secure, and sanitary space and break time to express breast milk for a nursing child.
   NEW PARAGRAPH.  g.  (1)  For the purposes of this paragraph, unless the context otherwise requires:
   (a)  “Reasonable accommodation” includes but is not limited to more frequent or longer breaks, time off to recover from childbirth, acquisition or modification of equipment, performance of job duties while seated, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, assistance with manual labor, or modified work schedules.
   (b)  “Related medical condition” includes but is not limited to lactation or the need to express breast milk for a nursing child.
   (2)  It shall be an unfair or discriminatory practice for an employer to do any of the following:
   (a)  Deny a reasonable accommodation in the terms, conditions, or privileges of employment to a job applicant or employee based on the employee’s or applicant’s pregnancy, childbirth, or related medical condition if the employee or applicant requests a reasonable accommodation, unless the employer can demonstrate that providing the accommodation would impose an undue hardship on the employer’s program, enterprise, or business.
   (b)  Retaliate or take adverse action against an employee who requests or uses a reasonable accommodation pursuant to this paragraph. 
   (c)  Deny employment opportunities to a job applicant or employee if such denial is based on the need of the employer to make a reasonable accommodation to the job applicant or employee pursuant to this paragraph.
   (d)  Require a job applicant or employee affected by pregnancy, childbirth, or a related medical condition to accept an accommodation that the applicant or employee declines to accept.
   (e)  Require an employee to take employment leave if another reasonable accommodation can be provided pursuant to this paragraph without undue hardship to the employer.
   (f)  Make an inquiry prior to employment regarding a job applicant’s pregnancy, childbirth, or related medical condition.
   (3)  An employer shall engage in a timely, good-faith, and interactive process with an employee to determine effective reasonable accommodations pursuant to this paragraph. 
   (4)  (a)  An employer shall have the burden of proving undue hardship under this paragraph. In making a determination of undue hardship, factors to be considered by the commission include but are not limited to:
   (i)  The nature and cost of the accommodation.
   (ii)  The overall financial and other resources of the employer.
   (iii)  The overall size of the business of the employer with respect to the number of employees.
   (iv)  The number, type, and location of the employer’s facilities.
   (b)  The fact that an employer provides or would be required to provide a similar accommodation to another class of employees that requires such accommodation shall create a rebuttable presumption that the accommodation does not impose an undue hardship on the employer.
   (5)  An employer shall post written notice in a form prescribed by the commission of the right to be free from discrimination in relation to pregnancy, childbirth, or a related medical condition, including the right to reasonable accommodations based on pregnancy, childbirth, or a related medical condition, pursuant to this paragraph conspicuously at the employer’s place of business in an area accessible to employees. The notice shall state the employee’s right to a private, secure, and sanitary space and break time to express breast milk for a nursing child and shall include the employer’s specific plan to meet this requirement. The notice shall also be provided to the following: 
   (a)  New employees at the commencement of employment.
   (b)  Existing employees by January 1, 2017.
   (c)  Any employee who notifies the employer of the employee’s pregnancy within ten days of such notification.
   (6)  The commission shall develop courses of instruction and conduct ongoing public education efforts as necessary to inform employers, employees, employment agencies, and job applicants regarding their rights and responsibilities under this paragraph.
   (7)  This paragraph shall not be construed to narrow or restrict any other provision of law relating to sex discrimination or pregnancy, or to diminish any right or responsibility thereunder.
   NEW PARAGRAPH.  h.  It is the intent of the general assembly that a violation of this subsection constitutes an unfair or discriminatory practice in violation of this chapter, subject to the processes and remedies set forth in this chapter, and further, that the burden-shifting analysis articulated by the United States supreme court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), shall not be applicable to the proper construction of this subsection.
EXPLANATION
The inclusion of this explanation does not constitute agreement with

the explanation’s substance by the members of the general assembly.
   This bill prohibits an employer from denying a reasonable accommodation in the terms, conditions, or privileges of employment to a job applicant or employee based on the employee’s or applicant’s pregnancy, childbirth, or related medical condition upon request, unless the employer can demonstrate that providing the accommodation would impose an undue hardship on the employer.
   The bill prohibits an employer from retaliating or taking adverse action against an employee who requests or uses such a reasonable accommodation. 
   The bill prohibits an employer from denying employment opportunities to a job applicant or employee if such denial is based on the need of the employer to make such a reasonable accommodation.
   The bill prohibits an employer from requiring a job applicant or employee affected by pregnancy, childbirth, or a related medical condition to accept an accommodation that the applicant or employee declines to accept.
   The bill prohibits an employer from requiring an employee to take employment leave if another reasonable accommodation can be provided pursuant to the bill without undue hardship to the employer.
   The bill prohibits an employer from making an inquiry prior to employment regarding a job applicant’s pregnancy, childbirth, or related medical condition.
   The bill defines “reasonable accommodation” to include but not be limited to more frequent or longer breaks, time off to recover from childbirth, acquisition or modification of equipment, performance of job duties while seated, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, break time and private non-bathroom space for expressing breast milk, assistance with manual labor, or modified work schedules.
   The bill defines “related medical condition” to include but not be limited to lactation or the need to express breast milk for a nursing child.
   The bill defines “adverse action” as any action that might dissuade a reasonable worker from engaging in activities protected under Code chapter 216 and specifies that “adverse action” includes but is not limited to failing to reinstate the employee to the employee’s original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits, and other applicable service credits when the employee’s need for a reasonable accommodation ceases.
   The bill defines “undue hardship” as an action requiring significant difficulty or expense.
   The bill requires an employer to engage in a timely, good-faith, and interactive process with an employee to determine effective reasonable accommodations pursuant to the bill.
   The bill specifies that an employer shall have the burden of proving undue hardship under the bill. The bill provides a nonexclusive list of factors to be considered by the civil rights commission in making such a determination. The bill specifies that an employer who provides or would be required to provide a similar accommodation to another class of employees that requires such accommodation shall create a rebuttable presumption that the accommodation does not impose an undue hardship on the employer.
   The bill requires an employer to post written notice of the right to be free from discrimination in relation to pregnancy, childbirth, or a related medical condition, including the right to reasonable accommodations and a private, secure, and sanitary space and break time to express breast milk for a nursing child, conspicuously at the employer’s place of business in an area accessible to employees. The bill also requires such notice to be provided to new employees, existing employees by January 1, 2017, and any employee who notifies the employer of the employee’s pregnancy. 
   The bill requires the commission to develop courses of instruction and conduct ongoing public education efforts as necessary to inform employers, employees, employment agencies, and job applicants regarding their rights and responsibilities under the bill.
   The preceding provisions of the bill shall not be construed to narrow or restrict any other provision of law relating to sex discrimination or pregnancy, or to diminish any right or responsibility thereunder.
   The bill requires an employer to provide to an employee a private, secure, and sanitary space and break time to express breast milk for a nursing child.
   Under current law, a written or unwritten employment policy or practice which excludes from employment applicants or employees because of the employee’s pregnancy is a prima facie violation of Code chapter 216. The bill removes the phrase “prima facie,” so that such employment policies or practices are violations of Code chapter 216.
   The bill states that it is the intent of the general assembly that a violation of Code section 216.6, subsection 2, which governs employment policies relating to pregnancy and childbirth, constitutes an unfair or discriminatory practice in violation of Code chapter 216, subject to the processes and remedies set forth in Code chapter 216, and further, that the burden-shifting analysis articulated by the United States supreme court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), shall not be applicable to the proper construction of Code section 216.6, subsection 2.
   Penalty provisions for discriminatory employment practices are applicable to the requirements established in the bill.