HOUSE BUSINESS AND EMPLOYMENT COMMITTEE SUBSTITUTE FOR

HOUSE BILL 37

52nd legislature - STATE OF NEW MEXICO - first session, 2015

AN ACT

RELATING TO EMPLOYMENT; ENACTING THE PREGNANT WORKER ACCOMMODATION ACT; PROHIBITING DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF PREGNANCY, CHILDBIRTH OR A RELATED SERIOUS MEDICAL CONDITION; REQUIRING THAT EMPLOYERS MAKE REASONABLE ACCOMMODATION OF AN EMPLOYEE'S OR JOB APPLICANT'S PREGNANCY, CHILDBIRTH OR RELATED SERIOUS MEDICAL CONDITION; PROHIBITING RETALIATION FOR AN EMPLOYEE'S OR JOB APPLICANT'S ASSERTION OF A CLAIM PURSUANT TO THE PREGNANT WORKER ACCOMMODATION ACT; PROVIDING FOR GRIEVANCE PROCEDURE AND PENALTIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. A new section of Chapter 28 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Pregnant Worker Accommodation Act"."

     SECTION 2. A new section of Chapter 28 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] DEFINITIONS.--As used in the Pregnant Worker Accommodation Act:

          A. "employer" means a person or entity, including a partnership, association, corporation, business trust, unassociated group or agency employing four or more employees or a person or entity acting on behalf of or as an agent of an employer;

          B. "reasonable accommodation" means modification or adaptation of a work environment, work rules or job responsibilities that enables an employee, who is incapacitated due to pregnancy, childbirth or a related serious medical condition that limits one or more of the employee's major life activities, to perform the employee's job and that does not impose an undue hardship on the employer; and

          C. "undue hardship" means an action requiring significant difficulty or expense when considered in light of the following factors:

                (1) the nature and cost of the accommodation;

                (2) the financial resources of the employer involved in the provision of the reasonable accommodation;

                (3) the number of persons the employer employs;

                (4) the effect on expenses and resources;

                (5) the impact otherwise of the accommodation upon the employer's business;

                (6) the overall financial resources of the employer;

                (7) the overall size of the business of an employer with respect to the number, type and location of its facilities;

                (8) the type of operation of the employer, including the composition, structure and functions of the work force of the employer; and

                (9) the geographic separateness or administrative or fiscal relationship to the employer of the employer's facilities."

     SECTION 3. A new section of Chapter 28 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] EMPLOYMENT DISCRIMINATION--PROHIBITION.--

          A. It is an unlawful discriminatory practice for an employer to:

                (1) refuse to allow an employee incapacitated by pregnancy, childbirth or a related serious medical condition to take unpaid leave for a reasonable period of time not to exceed three months and thereafter return to work in the same or a similar position in the workplace. The employee shall be entitled to use any accrued vacation, personal or sick leave during this period of time. An employer may require an employee who plans to take leave pursuant to this section to give the employer reasonable notice of the date the leave will commence and the estimated duration of the leave;

                (2) refuse to maintain coverage for an eligible female employee who takes leave under a group health plan that the employer offers, as defined in Section 5000(b)(1) of the federal Internal Revenue Code of 1986, for the duration of leave that the employee takes pursuant to this section, not to exceed three months over the course of a twelve-month period in accordance with federal law, at the level and the conditions under which the employee would have been covered by the group health plan coverage if the employee had continued in employment continuously for the duration of the leave; provided that:

                     (a) nothing in this paragraph shall preclude an employer from maintaining and paying for coverage under a group health plan for an employee for leave that extends beyond three months;

                     (b) an employer may recover from the employee the premium that the employer paid as required under this paragraph for maintaining coverage for the employee under the group plan; and

                     (c) if the employer is a state agency, the collective bargaining agreement shall govern with respect to the continued receipt by an eligible female employee of group health plan coverage pursuant to the provisions of this paragraph;

                (3) refuse a request for reasonable accommodation or fail to make reasonable accommodation for an employee or job applicant incapacitated by pregnancy, childbirth or a related serious medical condition, unless the employer demonstrates that the accommodation constitutes an undue hardship;

                (4) refuse to hire, discharge, refuse to promote, demote or discriminate in matters of compensation or leave or terms, conditions or privileges of employment against any person otherwise qualified for employment on the basis of the employer's failure to treat an employee or job applicant incapacitated by pregnancy, childbirth or a related serious medical condition in the same manner as other persons similar in ability to work for all employment-related purposes, including receipt of benefits under employee benefit programs;

                (5) print or circulate or cause to be printed or circulated any statement, advertisement or publication; use any form of application for employment; or make any inquiry regarding prospective employment that expresses directly or indirectly any limitation, specification or discrimination as to pregnancy, childbirth or a related serious medical condition unless based on a bona fide qualification; and

                (6) require an employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided to the known incapacity related to the employee's pregnancy, childbirth or related serious medical condition.

          B. It is an unlawful discriminatory practice for an employer to refuse to list or properly classify for employment or to refuse to refer a person for employment in a known available job for which the person is otherwise qualified on the basis of the person's pregnancy, childbirth or related serious medical condition, unless based on a bona fide occupational qualification.

          C. It is an unlawful discriminatory practice for an employer's agent to comply with a request from an employer for referral of applicants for employment if the request indicates either directly or indirectly that the employer discriminates in employment on the basis of pregnancy, childbirth or related serious medical condition, unless that discrimination is based on a bona fide occupational qualification.

          D. Nothing in the Pregnant Worker Accommodation Act shall be construed to invalidate or limit the remedies, rights or procedures of the Human Rights Act or the law of any jurisdiction that provides greater or equal protection for workers."

     SECTION 4. A new section of Chapter 28 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] PREGNANCY ACCOMMODATION NOTICE.--

          A. An employer shall provide written notice of an employee's rights pursuant to the Pregnant Worker Accommodation Act to be free from discrimination in relation to pregnancy, childbirth or a related serious medical condition, including the right to reasonable accommodations for conditions related to pregnancy, childbirth or a related serious medical condition, to:

                (1) job applicants; and

                (2) new employees at the commencement of employment.

          B. The notice provided pursuant to this section shall also be conspicuously posted at an employer's place of business in an area accessible to employees."

     SECTION 5. A new section of Chapter 28 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] ADMINISTRATIVE REVIEW--JUDICIAL REVIEW.--

          A. A person claiming to be aggrieved by an unlawful discriminatory practice in violation of the Pregnant Worker Accommodation Act may:

                (1) maintain an action to establish liability and recover damages and injunctive relief in any court of competent jurisdiction by an employee or job applicant on behalf of the employee or job applicant or on behalf of other employees or job applicants similarly situated; or

                (2) seek relief under the Human Rights Act pursuant to the process set out in Sections 28-1-10 through 28-1-13 NMSA 1978.

          B. The court in any action brought pursuant to this section shall, in addition to any judgment awarded to the plaintiff, allow costs of the action and reasonable attorney fees to be paid by the defendant. In any proceedings brought pursuant to the provisions of this section, the employee or job applicant shall not be required to pay any filing fee or other court costs necessarily incurred in such proceedings.

          C. The court in any action brought under this section may order appropriate injunctive relief, including requiring an employer to post in the place of business a notice describing violations by the employer, as determined by the court or a copy of a cease and desist order applicable to the employer.

          D. An action arising pursuant to the Pregnant Worker Accommodation Act shall be initiated within one year from the date of discovery of the violation.

          E. A person claiming to be aggrieved by an unlawful discriminatory practice in violation of the Pregnant Worker Accommodation Act need not exhaust state administrative remedies before filing an action in court.

          F. The initiation of an administrative process under the Human Rights Act pursuant to the process set out in Sections 28-1-10 through 28-1-13 NMSA 1978 shall toll the statute of limitations for initiating a claim under the Pregnant Worker Accommodation Act."

     SECTION 6. A new section of Chapter 28 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] RETALIATION PROHIBITED.--It is a violation of the Pregnant Worker Accommodation Act for an employer or any other person to discharge, demote, deny promotion to or in any other way discriminate against an employee in the terms or conditions of employment in retaliation for the person asserting a claim or right pursuant to the Pregnant Worker Accommodation Act, for assisting another person to assert a claim or right pursuant to the Pregnant Worker Accommodation Act or for informing another person about employment rights or other rights provided by law."  

     SECTION 7. A new section of Chapter 28 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] REMEDIES.--A prevailing plaintiff may recover from an employer for violation of a provision of the Pregnant Worker Accommodation Act:

          A. equitable relief, including employment, reinstatement or promotion;

          B. damages that shall be calculated on the basis of:

                (1) an affected employee's unpaid wages and damages arising from retaliation; or

                (2) any other actual damages; or

          C. reasonable attorney fees and costs."

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