On June 2, 2017, Nevada enacted the Pregnant Workers’ Fairness Act (“Act”), requiring covered employers to provide reasonable accommodations to female employees and job applicants related to pregnancy, childbirth or a related medical condition. The Act was intended to combat pregnancy discrimination, promote public health and female participation in the workplace. Key provisions from the Act are described below.
Covered Employers, Employees and Applicants
The Act generally applies to all Nevada employers with 15 or more employees, as well as to state and local governments. Contractors licensed under Chapter 624 of the Nevada Revised Statutes have a partial exemption from the Act’s requirements.
The Act protects female employees and job applicants for any “condition” relating to pregnancy, childbirth or a related medical condition. A “condition” includes both physical and mental conditions intrinsic to pregnancy or childbirth. A “related medical condition” means any medically recognized physical or mental condition related to pregnancy, childbirth or recovery from pregnancy or childbirth.
The Act makes it an unlawful employment practice for covered employers to refuse to provide reasonable accommodations, upon request, for a covered condition of the employee or applicant, unless the accommodation would impose an undue hardship on the business of the employer or unless the employer’s action is based upon a bona fide occupational qualification.
The Act also makes it an unlawful employment practice for a covered employer to take any adverse employment action against a female employee because she requests or uses a reasonable accommodation. Prohibited adverse employment actions include refusing to promote the employee, transferring the employee to another position, or refusing to reinstate the employee to the same or an equivalent position upon returning to work.
A covered employer is further prohibited from denying an employment opportunity to an employee or job applicant that is otherwise qualified, based on the employee’s or job applicant’s need for a reasonable accommodation.
Finally, the Act prohibits a covered employer from requiring a female employee or job applicant to accept an accommodation that the employee or applicant did not request or choose to accept, or requiring an employee to take a leave of absence if a reasonable accommodation is available that would allow the employee to continue to work.
Duty to Engage in an Interactive Process
When a female employee requests an accommodation, a covered employer must engage in an interactive process to determine whether an effective and reasonable accommodation for the employee can be made. An accommodation may consist of a change in the work environment or job duties and identifies certain forms of accommodation. A non-exclusive list of possible accommodations is set forth in the Act, including modifying equipment or seating, revising break schedules, providing space other than a bathroom for expressing breast milk, providing assistance with manual labor, authorizing light duty work, temporary transfer to a less strenuous position, and providing a modified work schedule. A covered employer is permitted to require the female employee to provide an explanatory statement from her physician concerning the specific accommodation recommended by the physician. An employer is not required to create a new position or to discharge or transfer an employee with more seniority unless the employer would take similar action to accommodate other classes of employees.
If a female employee or applicant makes a prima facie showing that her request for reasonable accommodation was denied, the burden then shifts to the employer to demonstrate that providing the accommodation would impose an undue hardship on the business of the employer.
Notice and Posting Requirements
Covered employers must provide written or electronic notice to employees of their right to be free from discriminatory or unlawful employment practices pursuant to the Nevada Revised Statutes section 613.335 and Sections 2 to 8 of the Act. The written notice must include a statement that a female employee has the right to a reasonable accommodation for a condition relating to pregnancy, childbirth or a related medical condition.
An employer must also provide the notice to any new employee upon commencement of employment or within 10 days after an employee notifies the employee’s immediate supervisor that the employee is pregnant.
A covered employer must also post the required notice in a conspicuous place at the employer’s business in an area which is accessible to its employees.
The notice and posting obligations became effective June 2, 2017. For all other purposes, the Act takes effect on October 1, 2017.
Takeaway for Employers
Covered Nevada employers should already be complying with the notice and posting requirements of the Act. Supervisors and managers should also be trained on the Act’s requirements and be made aware if a female employee requests accommodation for a pregnancy-related condition, the employer should initiate an interactive process to determine whether a reasonable accommodation can be made. While the employer has the option of requesting a statement from the employee’s physician concerning the specific accommodation requested, if the accommodation requested by the employee or applicant is reasonable, and it would not impose a hardship on the employer, an employer must provide it.