House of Representatives
Office of Program Research
Labor & Workplace Standards Committee
This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.
Brief Description: Providing reasonable accommodations in the workplace for pregnant women.
Sponsors: Senate Committee on Commerce & Labor (originally sponsored by Senators Keiser, Conway, Jayapal, Cleveland, Rolfes, Fraser, Litzow, Fain, Nelson, Habib, Chase, Mullet, Liias, Pedersen, Takko, Hasegawa, Ranker, Frockt, Hill, Benton and Billig).
Hearing Date: 2/23/16
Staff: Trudes Tango (786-7384).
Washington State Law Against Discrimination.
Under the Washington State Law Against Discrimination (WLAD), an employer may not discriminate against a person because of the person's sex or disability. The WLAD applies to employers that employ eight or more employees, but does not apply to religious or sectarian organizations not organized for private profit. An aggrieved person has administrative remedies, by filing a complaint with the Human Rights Commission, or may file a private cause of action in court.
Discrimination Based on Pregnancy.
Depending on the circumstances, an employee who believes she has been discriminated against because of her pregnancy may be able to establish a claim of disability discrimination or sex discrimination.
Based on a Washington Supreme Court case, pregnancy itself is not considered a disability. However, if a pregnancy-related medical condition results in the employee becoming temporarily disabled, the laws prohibiting discrimination because of disability could apply. Under the WLAD, an employer must provide reasonable accommodation to a disabled worker unless the employer can show that the accommodation would impose an undue hardship. Definitions and examples of "reasonable accommodations" and "undue hardships" are provided in rules.
Regarding sex discrimination, an employer generally may not treat male employees differently than female employees. An employer may not refuse to hire, demote, or fire a woman, or impose different terms and conditions of employment on a woman because of pregnancy or childbirth. Generally, if an employer provides reasonable accommodations to a male employee who is impaired from doing his job, the employer may have to provide reasonable accommodations to a female employee who is impaired due to pregnancy.
Other Laws Regarding Pregnancy and Childbirth.
The federal laws prohibiting sex discrimination provide that female employees affected by pregnancy, childbirth, or related medical conditions must be treated the same as other employees who have similar ability or inability to work.
Federal law also requires employers to provide reasonable break time for an employee to express milk for her nursing child for one year after the child's birth. Employers must provide a place, other than a bathroom, that is protected from view and free from intrusion from others. Employers with fewer than 50 employees are not subject to these requirements if compliance would impose an undue hardship.
Attorney General's Office.
The State Attorney General’s office provides legal services to the state agencies and, among other things, handles certain consumer protection complaints.
Summary of Bill:
An employer must provide reasonable accommodations to an employee for a pregnancy-related or childbirth-related health condition if requested, with written certification from a licensed health care provider, unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the employer's business.
The employee and employer must engage in an interactive process with respect to an employee's request for reasonable accommodation. The employee must give written notice stating that a health condition related to pregnancy or childbirth requires accommodation. However, no written notice is required, and an employer may not claim undue hardship for the following accommodations: (1) more frequent, longer, or flexible restroom, food, or water breaks; (2) seating; and (3) limits on lifting over 20 pounds.
An employer is not required to create new or additional positions to accommodate an employee, or discharge any employee, transfer any employee with greater seniority, or promote any employee. An employer may not:
require an employee to accept an accommodation, if the accommodation is unnecessary to enable the employee to perform the job;
take adverse action against an employee who requests or uses an accommodation;
deny employment opportunities to an otherwise qualified employee if the denial is based on the employer's need to make reasonable accommodation; or
require an employee to take leave if another reasonable accommodation can be provided.
The provisions apply to employers engaged in an industry who has 15 or more employees for each working day in each of the 20 or more calendar weeks in the current or preceding calendar year. "Employer" does not include tax-exempt nonprofit entities.
The Attorney General must investigate complaints and enforce the provisions. In addition, an aggrieved person may bring a civil cause of action in court to enjoin further violations or to recover actual damages, or both, plus costs and reasonable attorneys' fees or any other appropriate remedy authorized by state or federal law.
The Department of Labor and Industries must post printed information, such as a brochure, explaining the rights and responsibilities of employers and employees, and must include the information in the required workplace posters.
"Reasonable accommodation" means:
making existing facilities used by employees readily accessible to and usable by employees who have a pregnancy-related or childbirth-related disability;
job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, or appropriate adjustment or modifications of examinations;
temporary transfer to a less strenuous or hazardous position;
limits on heavy lifting; and
scheduling flexibility for prenatal visits.
"Undue hardship" means an action requiring significant difficulty or expense.
The provisions of the bill do not preempt, limit, diminish, or affect any other provision of law relating to sex discrimination or pregnancy, or in any way diminish or limit the coverage for pregnancy, childbirth, or a pregnancy-related health condition.
Fiscal Note: Available.
Effective Date: The bill takes effect 90 days after adjournment of the session in which the bill is passed.