6149-S.E AMH FARR TANG 135

ESSB 6149 - H AMD 913

By Representative Farrell

ADOPTED 03/04/2016

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. A new section is added to chapter 43.10 RCW to read as follows:

(1) An employer must provide reasonable accommodations to an employee for pregnancy or a pregnancy-related or childbirth-related health condition if so 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 written certification must describe the specific physical needs, limitations, or conditions that require reasonable accommodation.

(2) Notwithstanding subsection (1) of this section, an employee who is requesting reasonable accommodation for pregnancy or a pregnancy-related or childbirth-related health condition shall not be required to provide written certification from a licensed health care provider, nor may an employer claim undue hardship, for the following accommodations: (a) More frequent, longer, or flexible restroom, food, and water breaks; (b) seating; and (c) limits on lifting over twenty pounds.

(3) The employee and employer shall engage in an interactive process with respect to an employee's request for a reasonable accommodation. To assist in this process, the department shall post information in a printable format, such as a brochure, explaining the respective rights and responsibilities of the employer and the employee regarding reasonable accommodation for pregnancy or a pregnancy-related or childbirth-related health condition. In addition, the department shall, within existing resources, include information in the "Your Rights as a Worker" poster, or similar required workplace poster, regarding these respective rights and responsibilities.

(4) Unless otherwise required under provisions of law related to sex discrimination or disability discrimination, an employer shall not be required to create a new or additional position in order to accommodate an employee pursuant to this section, and shall not be required to discharge any employee, transfer any other employee with greater seniority, or promote any employee.

(5) An employer shall not require an employee who is requesting reasonable accommodation for pregnancy or a pregnancy-related or childbirth-related health condition to accept an accommodation, if such accommodation is unnecessary to enable the employee to perform the job.

(6) An employer shall not:

(a) Take adverse action against an employee who requests or uses an accommodation under this section that affects the terms, conditions, or privileges of employment;

(b) Deny employment opportunities to an otherwise qualified employee if such denial is based on the employer's need to make reasonable accommodation required by this section; or

(c) Require an employee to take leave if another reasonable accommodation can be provided for the employee's pregnancy or pregnancy-related or childbirth-related health condition.

(7) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.

(a) "Employee" means an individual employed by an employer.

(b) "Employer" has the same meaning as RCW 49.60.040(11).

(i) Making existing facilities used by employees readily accessible to and usable by an employee requesting accommodation for pregnancy or a pregnancy-related or childbirth-related health condition;

(ii) 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;

(iii) Temporary transfer to a less strenuous or hazardous position;

(iv) Limits on heavy lifting;

(v) Scheduling flexibility for prenatal and postnatal visits.

(d) "Undue hardship" means that the cost or difficulty is unreasonable in view of:

(i) The size of the employer and the financial and other resources available to the employer;

(ii) Whether the cost can be included in planned remodeling or maintenance; and

(iii) The requirements of other laws and contracts, and other appropriate considerations.

(8) This section does not preempt, limit, diminish, or otherwise affect any other provision of law relating to sex discrimination, disability discrimination, or pregnancy, or in any way diminish or limit the coverage for pregnancy or a pregnancy-related or childbirth-related health condition.

(9) The attorney general shall investigate complaints and enforce this section. The attorney general may issue civil investigative demands for the inspection of documents, interrogatory responses, and oral testimony in the enforcement of this section. The attorney general may seek all appropriate relief in the superior courts for violations of this section, including costs and a reasonable attorneys' fee. In addition to the complaint process with the attorney general, any aggrieved person injured by any act in violation of this section has a civil cause of action in court to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by state or federal law."

EFFECT: Changes the definition of employer to reference the definition used under the Washington Law Against Discrimination (employers with eight or more employees but not nonprofit religious or sectarian organizations).

Requires an employer to provide reasonable accommodation for pregnancy (not just for a pregnancy-related or childbirth-related health condition).

Removes the requirement that the employee provide written notice stating that a health condition related to pregnancy or childbirth requires accommodation. Instead, the written certification from the employee's licensed health care provider must describe the specific physical needs, limitations, or conditions that require reasonable accommodation.

Specifies that an employer is not required to create new or additional positions or discharge, transfer, or promote an employee under the bill, unless otherwise required under provisions of law relating to sex discrimination or disability discrimination.

Specifies that the bill does not preempt, limit, diminish, or otherwise affect other provisions of law related to disability discrimination.

Changes the definition of "reasonable accommodation" to: (1) make it a nonexclusive list; (2) provide that making existing facilities accessible and usable is an accommodation for a "condition" rather than "disability"; and (3) add scheduling flexibility for postnatal visits, not just prenatal visits, to the list of what constitutes reasonable accommodation.

Changes the definition of "undue hardship" to mean that the cost or difficulty is unreasonable in view of: (1) the size of the employer and the financial and other resources available to the employer; (2) whether the cost can be included in planned remodeling or maintenance; and (3) the requirements of other laws and contracts, and other appropriate considerations.

Provides the Attorney General certain subpoena powers to enforce the provisions and allows the Attorney General to seek all appropriate relief in court, including costs and reasonable attorneys' fees.

Specifies that the Department of Labor and Industries' inclusion of information in the workplace posters must be within existing resources.

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