Your Rights as a Pregnant Employee
Pregnant Workers Fairness Act
The Colorado Pregnant Workers Fairness Act (“PWFA”) was originally passed in 2016 to strengthen protection for pregnant employees in the workplace. The PWFA applies to private employers and public sector employers that have 15 or more employees. The PWFA treats pregnancy, miscarriage, abortion, and childbirth as temporary disabilities for all job-related purposes. This means employers must treat these conditions the same as any other temporary disability for providing leave duration, leave extension, job reinstatement, and health insurance coverage.
Importantly, employers cannot discriminate against an employee for being pregnant. That means if a pregnant employee is a candidate for a job or promotion, the employer cannot exclude the employee from consideration simply because they are pregnant (unless they are physically unable to perform the duties of the job). Even if the employer claims that there were other reasons the pregnant employee did not get the position, if the pregnancy was a motivating factor, then it is still unlawful.
Pregnancy Protections
The PWFA extends additional protections for pregnant women and prohibits covered employers from:
Requiring an employee to accept an accommodation without discussing the accommodation with the worker;
Denying a job or other employment opportunity to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
Requiring an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding, such as an investigation into a PWFA violation;
Interfering with any individual’s rights under the PWFA.
A covered employer can violate the PWFA if they refuse to have an interactive meeting to discuss the employee’s reasonable accommodation, or if they simply refuse the request without proper consideration.
Reasonable Pregnancy Accommodations
The PWFA requires covered employers to discuss any reasonable accommodations that the pregnant employee needs to perform their job duties. But the employer does not get to unilaterally decide what is reasonable. Some reasonable accommodations that a pregnant employee may be entitled to would include:
More frequent or longer breaks;
More frequent restroom, food, and water breaks;
Modified equipment or seating to help the employee do their job;
Limitations on physical activity;
Temporary transfer to a less strenuous or hazardous position if available;
Job restructuring (changing some of the job duties);
Light duty, if available;
Assistance with physical job duties; or
Modified work schedule.
Sometimes an employer may tell a pregnant employee that because of their business needs, it is not reasonable to accommodate the employee. But that is not how the law works. An employer may only deny a reasonable accommodation if it is an undue hardship. An undue hardship is an accommodation that would require significant difficulty or expense to the employer. This is a fact-specific inquiry that looks at the nature and cost of the accommodation, the size and financial resources of the employer, and the accommodation’s effect on expenses, resources, or operations of the employer. Importantly, the larger the employer the harder it may be for them to simply say accommodating a pregnant employee would be unduly expensive or disrupt their operations.
Protections for Nursing Mothers
Colorado law also requires employers to provide nursing employees both time to pump milk for their child, as well as space to do it. Specifically, an employer must provide reasonable unpaid break time, or to let an employee use a paid meal or break time, to express milk for the nursing child for up to two years from the child’s birth. The employer must make reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet stall, where an employee can express breast milk in private.
Retaliation and Damages
An employer is not allowed to retaliate in any way against an employee that is exercising their rights under the PWFA. An employer who interferes with a pregnant employee’s rights, such as by improperly refusing an accommodation or taking adverse action against the employee for being pregnant, then the employee may have a claim against the employer.
If an employer violates any of these protections then the employee may be able to recover damages, including any lost pay, benefits, compensatory damages such as emotional pain and suffering, punitive damages, and reasonable attorneys’ fees and costs. If you are pregnant, or just gave birth, and your employer is not providing you with the protections that you are entitled to, we can help.
