Last week, I wrote a blog post about a new statute, enacted in 2016, which requires Colorado employers to allow employees and ex-employees to inspect and obtain copies of documents in their personnel files. In this post, I will discuss another 2016 Colorado statute.
That statue, which added a new sec. 24-34-402.3 to the Colorado Anti-Discrimination Act (“CADA“), requires all Colorado employers to provide reasonable accommodations for health conditions related to pregnancy or the physical recovery from childbirth. It also provides:
- Any accommodation must be requested in writing.
- An accommodation cannot impose an undue hardship on the employer. The courts could and should use the definition of “undue hardship” adopted under CADA and the federal Americans with Disabilities Act (“ADA”).
- An employer cannot take an adverse employment action, or deny employment opportunities, to an employee who has requested a reasonable accommodation or based on the need to make a reasonable accommodation.
- An employer cannot require an employee to accept an accommodation that the employee has not requested or that is not necessary for the employee to perform the essential functions of the job.
- An employer cannot require that the employee take leave if the employer can make another reasonable accommodation.
The definitions make it clear that this new statute uses retaliation and ADA concepts. The definition of “adverse action” is based on the “materially adverse” concept that the Supreme Court has applied to retaliation cases. The definition of “reasonable accommodation” is also broad, and specifically includes “more frequent or longer break periods” and “more frequent restroom, food, and water breaks.” The term “undue hardship” is defined to mean “significant difficulty or expense to the employer.” That definition includes factors that may be considered in determining whether an accommodation would impose an undue hardship.
An employer cannot be required to do any of the following:
- Hire new employees that the employer otherwise would not have hired;
- Discharge an employee, transfer an employee who has less seniority, or promote an unqualified employee;
- Create a new position, including a light-duty position, “unless a light duty position would be provided for another equivalent employee”; or
- Provide paid leave beyond that which is provided to similar situated employees.
This new statute is far from perfect. It includes many compromises that were necessary to get it passed. Still, it represents a major legal advance for pregnant employees in Colorado. It requires employers to provide accommodations, including leave time, that frequently have been denied to pregnant employees. While it is not certain that the courts will interpret this statute correctly, its enactment should make it easier for pregnant employee and new mothers to continue to work. In short, it made Colorado a more family-friendly state, without imposing significant hardships on employers.