Revision: Jan. 6, 2016, midnight
\t \t\tSB 488-FN-LOCAL - AS INTRODUCED
2016 SESSION
\t16-2902
\t01/09
SENATE BILL\t488-FN-LOCAL
AN ACT\trequiring reasonable accommodations for pregnant workers.
SPONSORS:\tSen. Fuller Clark, Dist 21; Sen. Kelly, Dist 10; Sen. Lasky, Dist 13; Sen. Boutin, Dist 16; Rep. Sherman, Rock. 24; Rep. Rosenwald, Hills. 30; Rep. McBeath, Rock. 26; Rep. P. Gordon, Rock. 29
COMMITTEE:\tCommerce
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ANALYSIS
\tThis bill requires employers to provide reasonable accommodations for pregnant employees.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
\t16-2902
\t01/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trequiring reasonable accommodations for pregnant workers.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 State Commission for Human Rights; Pregnant Workers. Amend RSA 354-A:1 to read as follows:
\t354-A:1 Title and Purposes of Chapter. This chapter shall be known as the “Law Against Discrimination.” It shall be deemed an exercise of the police power of the state for the protection of the public welfare, health and peace of the people of this state, and in fulfillment of the provisions of the constitution of this state concerning civil rights. The general court hereby finds and declares that practices of discrimination against any of its inhabitants because of age, sex, race, creed, color, marital status, familial status, physical or mental disability or national origin are a matter of state concern, that such discrimination not only threatens the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state and threatens the peace, order, health, safety and general welfare of the state and its inhabitants. In addition, the general court finds that current workplace laws are inadequate to protect pregnant women from being forced out or fired when they need a simple, reasonable accommodation in order to stay on the job, and that many pregnant women are single mothers or primary breadwinners whose families will suffer if they lose their jobs. A state agency is hereby created with power to eliminate and prevent discrimination in employment, in places of public accommodation and in housing accommodations because of age, sex, race, creed, color, marital status, familial status, physical or mental disability or national origin as herein provided; and the commission established hereunder is hereby given general jurisdiction and power for such purposes. In addition, the agencies and councils so created shall exercise their authority to assure that no person be discriminated against on account of sexual orientation.
\t2 State Commission for Human Rights; Definitions. Amend RSA 354-A:2, XIV-b through XIV-d to read as follows:
\t\tXIV-b. “Reasonable accommodation” for the purposes of RSA 354-A:7, VII may include:
\t\t\t(a) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities.
\t\t\t(b) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
\t\tXIV-c. “Reasonable accommodation,” for the purposes of RSA 354-A:7, VIII shall include, but not be limited to: 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, or modified work schedules; provided that:
\t\t\t(a) No employer shall be required under this paragraph to create additional employment that the employer would not otherwise have created, unless the employer does so or would do so for other classes of employees who need accommodation; and
\t\t\t(b) No employer shall be required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job, unless the employer does so or would do so for other classes of employees who need accommodation.
\t\tXIV-d. “Related medical condition” includes, but is not limited to, lactation or the need to express breast milk for a nursing child.
\t\t[XIV-c.] XIV-e. “Sexual orientation” means having or being perceived as having an orientation for heterosexuality, bisexuality, or homosexuality. This definition is intended to describe the status of persons and does not render lawful any conduct prohibited by the criminal laws of this state or impose any duty on a religious organization. This definition does not confer legislative approval of such status, but is intended to assure basic rights afforded under this chapter.
\t\t[XIV-d.] XIV-f. “Undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in this paragraph. The employer shall have the burden of proving undue hardship. In determining whether an accommodation would impose an undue hardship on an employer, factors to be considered include:
\t\t\t(a) The nature and cost of the accommodation needed under this chapter.
\t\t\t(b) The overall financial resources of the facility involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility.
\t\t\t(c) The overall financial resources of the employer; the overall size of the business of an employer with respect to the number of its employees; and the number, type, and location of its facilities.
\t\t\t(d) The type of operation or operations of the employer, including the composition, structure, and functions of the workforce of such employer; the geographic separateness, administrative, or fiscal relationship of the facility in question to the employer.
\t3 State Commission for Human Rights; Unlawful Discriminatory Practices. Amend RSA 354-A:7, VI(a) to read as follows:
\t\tVI.(a) For the purposes of this chapter, the word “sex” includes pregnancy, childbirth, and related medical conditions [which result from pregnancy].
\t4 New Paragraph; State Commission for Human Rights; Unlawful Discriminatory Practices. Amend RSA 354-A:7 by inserting after paragraph VII the following new paragraph:
\t\tVIII.(a)(1) For any employer not to make reasonable accommodations for any condition of a job applicant or employee related to pregnancy, childbirth, or a related medical condition, including, but not limited to, the need to express breast milk for a nursing child, if the employee or applicant so requests, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s program, enterprise, or business;
\t\t\t\t(2) For any employer to take adverse action against an employee who requests or uses an accommodation in terms, conditions, or privileges of employment, including, but not limited to, failing to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits, and other applicable service credits when her need for reasonable accommodations ceases;
\t\t\t\t(3) For any employer to deny employment opportunities to an otherwise qualified job applicant or employee, if such denial is based on the need of the employer to make reasonable accommodations to the known conditions related to the pregnancy, childbirth, or related medical conditions of the applicant or employee;
\t\t\t\t(4) For any employer to require a job applicant or employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that such applicant or employee chooses not to accept; or
\t\t\t\t(5) For any employer to require an employee to take leave if another reasonable accommodation can be provided to the known conditions related to the pregnancy, childbirth, or related medical conditions of an employee.
\t\t\t(b) The employer shall engage in a timely, good faith, and interactive process with the employee to determine effective reasonable accommodations.
\t\t\t(c) Nothing in this paragraph shall be construed to preempt, limit, diminish, or otherwise affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage for pregnancy, childbirth, or a condition related to pregnancy or childbirth under any other provision of this chapter, including RSA 354-A:7, VI(b) and (c).
\t5 Effective Date. This act shall take effect January 1, 2017.
\t\t\t\t\t\t\t\t\t\t\t16-2902
\t\t\t\t\t\t\t\t\t\t\t1/5/16
SB 488-FN-LOCAL- FISCAL NOTE
AN ACT\trequiring reasonable accommodations for pregnant workers.
FISCAL IMPACT:
The Department of Administrative Services, New Hampshire Commission for Human Rights, and New Hampshire Municipal Association state this bill, as introduced, may increase state and local expenditures by an indeterminable amount in FY 2017 and each year thereafter. There will be no impact on state, county and local revenue or county expenditures.
METHODOLOGY:
The Department of Administrative Services does not anticipate a fiscal impact other than the “soft costs” of providing more time for breaks, loss of work time, or temporary transfer of a person to another position. Classified State employees receive leave benefits for physical disability resulting from pregnancy and are also afforded protection under the Family and Medical Leave Act. The Department states, because the circumstances vary, it cannot determine the cost associated with holding a position open, or providing a returning employee with a position upon return to work, but the Department expects such costs would be negligible.
The New Hampshire Municipal Association states the bill requires employers to make reasonable accommodations for any condition of a job applicant or employee related to pregnancy, childbirth, or a related medical condition. Such accommodations include more frequent or longer breaks, time off, acquisition or modification of equipment, job restructuring, providing private non-bathroom space, and modified work schedules. The Association states complying with these requirements may increase municipal expenditures, but the Association has no way to anticipate what changes will need to be made. The Association indicates there should be no effect on municipal revenues.
The New Hampshire Commission for Human Rights states the proposed language, which amends the definition of “reasonable accommodation” as it relates to pregnancy and pregnancy related medical conditions and expressing breast milk in the workplace, provides a right to reasonable accommodation that is not explicitly stated in current law. Based on a review of inquiries received between October 2014 and September 2015, the Commission assumes 24 additional charges could have been prepared based on the proposed bill. Half of the charges would have involved pregnancy related accommodations and half would have involved expressing breast milk in the workplace. The Commission indicated the potential increase in charges would necessitate hiring an additional full-time Anti-Discrimination Investigator. The Commission determined the bill would result in the following additional expenditures, of which federal funds would cover 17 percent:
| FY 2017 (1/2 year) | FY 2018 | FY 2019 | FY 2020 |
Anti-Discrimination Investigator –Salary | $20,914 | $42,666 | $44,441 | $46,303 |
Benefits | $12,648 | $26,723 | $28,436 | $30,267 |
Other Expenses | $5,175 | $350 | $350 | $350 |
Total Expenses | $38,737 | $69,739 | $73,227 | $76,920 |
State Share | $32,384 | $58,302 | $61,218 | $64,305 |
Federal Share (17%) | $6,353 | $11,437 | $12,009 | $12,615 |
The New Hampshire Association of Counties does not believe this bill would result in any fiscal impact to the counties.
This bill does not provide authorization or appropriations for a new position.