The Oregon legislature enacted two new laws on the rules governing pregnancy and childbirth as well as lactation accommodations in the workplace. All Oregon employers with six or more employees, must provide reasonable accommodation for limitations related to pregnancy, childbirth, or related medical conditions. All employers, regardless of size, are required to provide an employee with a reasonable period of time to express milk each time there is a need.
- Oregon employers are subject to expanded protections against pregnancy-related discrimination and must post and provide written notice to employees.
- All Oregon employers must provide a reasonable amount of time to express milk each time an employee needs, unless an undue hardship exemption applies.
1. Employer’s Obligation to Accommodate Pregnancy and Related Conditions
Beginning January 1, 2020, House Bill 2341, (known as the Employer Accommodation for Pregnancy Act), expressly requires employers with six or more employees, to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions, unless it poses an undue hardship on the employer. The law amends Chapter 659A of Oregon’s civil rights code by extending the prohibition of discrimination based on limitations and conditions related to pregnancy. The law provides that a reasonable accommodation for pregnancy, childbirth, and related conditions may include modifying equipment, periodic rest, assisting with manual labor, or modifying work schedules.
Undue Hardship Exemption
An employer does not need to provide accommodation under the Act if doing so is unreasonable and causes the employer undue hardship. An undue hardship is considered under the law to be an employer accommodation that requires “significant difficulty or expense.” An employer must consider the following factors when determining whether an employee accommodation requires significant difficulty or expense: 1) the nature and cost of the accommodation needed; 2) the financial resources and size of the facility providing the accommodation; 3) the overall financial resources and size of the employer; and 4) the type of operations conducted by the employer. Employers seeking to utilize the undue hardship exception should consult with counsel prior to doing so.
The law prohibits adverse employment practices against employees or job applicants because of known limitations related to pregnancy, childbirth or a related medical condition. The statute explicitly prohibits employers from the following:
- Denying employment opportunities based on the need of the employer to make reasonable accommodation for known limitations;
- Failing or refusing to make reasonable accommodation for known limitations (absent undue hardship);
- Taking an adverse action, discriminating, or retaliating against an applicant or employee, in the terms or conditions of employment because the employee has inquired about or requested accommodation;
- Requiring an applicant or employee to accept a reasonable accommodation that is not necessary for them to perform essential duties of their job or to accept an accommodation without a known limitation;
- Requiring an employee to take family leave, or any other leave if the employer can make a reasonable accommodation for the known limitation.
Employers must post signs in a conspicuous and accessible location that informs employees of their rights. Oregon’s Bureau of Labor and Industries (BOLI) has developed a template for this notice that employers may use.
Employers also must provide a written copy of the notice to: 1) new employees at the time of hire; 2) existing employees by June 29, 2020, and 3) within 10 days to any employee who informs the employer of their pregnancy.
2. Employer’s Obligation to Provide Lactation Accommodation Rest Periods
Effective September 2019, House Bill 2593 amended Oregon’s wage and hour law by expanding the length and frequency of rest periods available to employees to express milk. All employers, regardless of size, are subject to these requirements and must provide an employee with a “reasonable period of time to express milk each time the employee has a need.” This is a significant change from the prior law providing for a fixed 30-minute rest period to express milk.
Undue Hardship Exemption for Employers with Less than 10 Employees The law also includes an “undue hardship” exemption that may apply to employers with less than 10 employees. An employer does not need to provide accommodation under the Act if doing so is unreasonable and causes the employer undue hardship. The law defines “undue hardship” as a “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.” Employers seeking to utilize the undue hardship exception should consult with counsel prior to doing so.
Penalties for Non-Compliance
In addition to any other penalty provided by law, the Commissioner of the BOLI may assess a civil penalty up to $1,000 for willful violations, and in addition may assess a civil penalty up to $1,000 against any person that intentionally violates the lactation accommodation rest period provisions.
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