On June 25, 2015, Rhode Island Governor Gina M. Raimondo signed legislation requiring Rhode Island employers to provide workplace accommodations for pregnant workers.  The new law, which went into effect immediately, obligates employers to provide a reasonable accommodation for any condition related to pregnancy, childbirth, or related medical conditions.  While the new law is an important addition to the Rhode Island Fair Employment Practices Act (“FEPA”), the overall impact of its obligations is likely diminished by existing requirements under federal law.

What are employers’ obligations and rights under the new law?

The new law adds subsection 28-5-7.4 to FEPA, and makes it an unlawful employment practice for an employer to refuse to reasonably accommodate an employee’s – or prospective employee’s – limitations related to pregnancy, childbirth, or a related condition.  A “related condition” is defined to include, but is not limited to, expressing breast milk for a nursing child.  The new law also makes it an unlawful employment practice for an employer to require an employee to take a leave of absence if another reasonable accommodation can be provided, or to deny employment opportunities based on the employer’s refusal to reasonably accommodate pregnancy, childbirth, or a related medical condition.  The new law also obligates employers to provide written notice of these rights to new employees at the commencement of their employment, to existing employees within 120 days of June 25, 2015, and to any employee who notifies the employer of her pregnancy within 10 days of such notice.

An employer is not required to provide an accommodation if it can demonstrate  the request  imposes an undue hardship.  The new law defines undue hardship as “an action requiring significant difficulty or expense to the employer.”  To determine whether an undue hardship exists, a reviewing court or agency will assess the nature and cost of the accommodation, the overall financial resources of the employer, and the effect the accommodation would have on the employer’s operations.  The employer has the burden of proving an undue hardship exists.  Importantly, the fact that the employer provides a similar accommodation to other classes of employees (e.g., providing light duty to employees who experienced a workers’ compensation injury) creates a rebuttable presumption the accommodation does not impose an undue hardship for the employer.

What qualifies as a reasonable accommodation?

The new law specifically lists 10 possible reasonable accommodations (and makes clear this is not an exhaustive list:

• Providing more frequent or longer breaks
• Time off to recover from childbirth
• Acquisition or modification of equipment
• Seating
• 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
• A modified work schedule

Employees and prospective employees have the option to accept or decline to accept an accommodation.

What is the practical impact of the new law?

Even before the new law was enacted, FEPA defined sex discrimination to include pregnancy, childbirth, or related medical conditions.  However, FEPA did not specifically require employers to accommodate pregnant individuals.  In practical terms, FEPA previously only prohibited employers from treating pregnant employees worse than other employees (i.e., not to discriminate against pregnant employees); the new law requires employers to provide pregnant employees additional benefits in certain circumstances (i.e., to reasonably accommodate pregnant employees). At least 12 states and the District of Columbia already impose a similar accommodation requirement in their fair employment practices laws.

In Young v. UPS,¹ the U.S. Supreme Court recently clarified federal law on the issue of accommodating pregnant employees, holding an employee can make out a case of pregnancy discrimination by showing their employer denied a request for an accommodation while at the same time accommodating other employees “similar in their ability or inability to work.”   Similarly, federal law already imposes a duty to provide private, non-bathroom space for employees expressing breast milk.  Therefore, while the actual impact of the addition of 28-5-7.4 to FEPA may be limited, it will undoubtedly lead to additional claims and lawsuits.

What should employers do?

While many of the new law’s requirements are duplicative of existing federal law, it is still important for Rhode Island employers to assess their current practices and make necessary adjustments.  The most immediate requirements is to comply with the notice requirements. The statute does not explicitly instruct the Rhode Island Commission for Human Rights (the “Commission”) – which is charged with enforcing the law – to generate a poster  employers can use to comply with the law’s notice requirement.  Therefore, in order to maintain compliance with the new law, employers should develop a written notice to be both posted and provided to employees absent further guidance from the legislature or the Commission.

In addition, employers should:

• Review existing procedures for requesting a workplace accommodation to ensure consistency in accommodating both pregnant and non-pregnant employees.
• Train supervisory and managerial employees, and HR personnel on the new law’s requirements.
• Review and revise, if necessary, leave of absence policies and procedures to ensure they meet the new law’s requirements, including a statement that a reasonable accommodation may be available to individuals who suffer from a condition related to pregnancy, childbirth, or a related condition.
• Ensure written notice of the new law is provided to current employees on or before October 22, 2015, to new hires during the orientation process, and going forward to any employee who notifies the employer she is pregnant, within 10 days of such notice.

Employers should consult with experienced employment counsel when addressing these issues.