HB0409BES

HOUSE BUSINESS AND EMPLOYMENT COMMITTEE SUBSTITUTE FOR

HOUSE BILL 409

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

AN ACT

RELATING TO EMPLOYMENT; AMENDING AND ENACTING SECTIONS OF THE HUMAN RIGHTS ACT TO PROVIDE PROTECTIONS AND REASONABLE ACCOMMODATION OF PREGNANT WOMEN.

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

SECTION 1. Section 28-1-7 NMSA 1978 (being Laws 1969, Chapter 196, Section 7, as amended) is amended to read:

"28-1-7. UNLAWFUL DISCRIMINATORY PRACTICE.--It is an unlawful discriminatory practice for:

A. an employer, unless based on a bona fide occupational qualification or other statutory prohibition, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex, pregnancy, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation; provided, however, that 29 U.S.C. Section 631(c)(1) and (2) shall apply to discrimination based on age; or, if the employer has fifteen or more employees, to discriminate against an employee based upon the employee's sexual orientation or gender identity;

B. a labor organization to exclude a person or to expel or otherwise discriminate against any of its members or against any employer or employee because of race, religion, color, national origin, ancestry, sex, pregnancy, sexual orientation, gender identity, spousal affiliation, physical or mental handicap or serious medical condition;

C. any employer, labor organization or joint apprenticeship committee to refuse to admit or employ any person in any program established to provide an apprenticeship or other training or retraining because of race, religion, color, national origin, ancestry, sex, pregnancy, sexual orientation, gender identity, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation;

D. any person, employer, employment agency or labor organization to print or circulate or cause to be printed or circulated any statement, advertisement or publication, to use any form of application for employment or membership or to make any inquiry regarding prospective membership or employment that expresses, directly or indirectly, any limitation, specification or discrimination as to race, color, religion, national origin, ancestry, sex, pregnancy, sexual orientation, gender identity, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation, unless based on a bona fide occupational qualification;

E. an employment agency to refuse to list and properly classify for employment or refer a person for employment in a known available job, for which the person is otherwise qualified, because of race, religion, color, national origin, ancestry, sex, pregnancy, sexual orientation, gender identity, spousal affiliation, physical or mental handicap or serious medical condition, unless based on a bona fide occupational qualification, or 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 race, religion, color, national origin, ancestry, sex, pregnancy, sexual orientation, gender identity, spousal affiliation, physical or mental handicap or serious medical condition, unless based on a bona fide occupational qualification;

F. any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, pregnancy, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation;

G. any person to:

(1) refuse to sell, rent, assign, lease or sublease or offer for sale, rental, lease, assignment or sublease any housing accommodation or real property to any person or to refuse to negotiate for the sale, rental, lease, assignment or sublease of any housing accommodation or real property to any person because of race, religion, color, national origin, ancestry, sex, pregnancy, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation;

(2) discriminate against any person in the terms, conditions or privileges of the sale, rental, assignment, lease or sublease of any housing accommodation or real property or in the provision of facilities or services in connection therewith because of race, religion, color, national origin, ancestry, sex, pregnancy, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation; or

(3) print, circulate, display or mail or cause to be printed, circulated, displayed or mailed any statement, advertisement, publication or sign or use any form of application for the purchase, rental, lease, assignment or sublease of any housing accommodation or real property or to make any record or inquiry regarding the prospective purchase, rental, lease, assignment or sublease of any housing accommodation or real property that expresses any preference, limitation or discrimination as to race, religion, color, national origin, ancestry, sex, pregnancy, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation;

H. any person to whom application is made either for financial assistance for the acquisition, construction, rehabilitation, repair or maintenance of any housing accommodation or real property or for any type of consumer credit, including financial assistance for the acquisition of any consumer good as defined by Section 55-9-102 NMSA 1978, to:

(1) consider the race, religion, color, national origin, ancestry, sex, pregnancy, sexual orientation, gender identity, spousal affiliation or physical or mental handicap of any individual in the granting, withholding, extending, modifying or renewing or in the fixing of the rates, terms, conditions or provisions of any financial assistance or in the extension of services in connection with the request for financial assistance; or

(2) use any form of application for financial assistance or to make any record or inquiry in connection with applications for financial assistance that expresses, directly or indirectly, any limitation, specification or discrimination as to race, religion, color, national origin, ancestry, sex, pregnancy, sexual orientation, gender identity, spousal affiliation or physical or mental handicap;

I. any person or employer to:

(1) aid, abet, incite, compel or coerce the doing of any unlawful discriminatory practice or to attempt to do so;

(2) engage in any form of threats, reprisal or discrimination against any person who has opposed any unlawful discriminatory practice or has filed a complaint, testified or participated in any proceeding under the Human Rights Act; or

(3) willfully obstruct or prevent any person from complying with the provisions of the Human Rights Act or to resist, prevent, impede or interfere with the commission or any of its members, staff or representatives in the performance of their duties under the Human Rights Act; or

J. any employer to refuse or fail to accommodate a person's physical or mental handicap or serious medical condition, unless such accommodation is unreasonable or an undue hardship."

SECTION 2. Section 28-1-9 NMSA 1978 (being Laws 1969, Chapter 196, Section 8, as amended) is amended to read:

"28-1-9. EXEMPTIONS.--Nothing contained in the Human Rights Act shall:

A. apply to any single-family dwelling sold, leased, subleased or rented by an owner without the making of any notice, statement or advertisement with respect to the sale, lease, sublease or rental of a dwelling unit that indicates any preference, limitation or discrimination based on race, color, religion, national origin, ancestry, sex, pregnancy, sexual orientation or gender identity. This exemption is subject to these further reservations:

(1) to qualify for the exemption, the seller must not be an owner of or own or have reserved any interest in more than three single-family dwellings; and

(2) if the seller does not currently live in the dwelling or [he] was not the most recent occupant, the exemption granted in this section shall only apply to one sale in twenty-four months;

B. bar any religious or denominational institution or organization that is operated, supervised or controlled by or that is operated in connection with a religious or denominational organization from limiting admission to or giving preference to persons of the same religion or denomination or from making selections of buyers, lessees or tenants as are calculated by the organization or denomination to promote the religious or denominational principles for which it is established or maintained, unless membership in the religious or denominational organization is restricted on account of race, color, national origin or ancestry;

C. bar any religious or denominational institution or organization that is operated, supervised or controlled by or that is operated in connection with a religious or denominational organization from imposing discriminatory employment or renting practices that are based upon sexual orientation or gender identity; provided that the provisions of the Human Rights Act with respect to sexual orientation and gender identity shall apply to any other:

(1) for-profit activities of a religious or denominational institution or religious organization subject to the provisions of Section 511(a) of the Internal Revenue Code of 1986, as amended; or

(2) nonprofit activities of a religious or denominational institution or religious organization subject to the provisions of Section 501(c)(3) of the Internal Revenue Code of 1986, as amended;

D. apply to rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of the living quarters as [his] the owner's residence;

E. apply to public restrooms, public showers, public dressing facilities or sleeping quarters in public institutions, where the preference or limitation is based on sex; and

F. prevent the mandatory retirement of an employee upon reaching the age of sixty-five years or older, if the employer is operating under a retirement plan that meets the requirements of Public Law 93-406, the Employee Retirement Income Security Act of 1974."

SECTION 3. A new section of the Human Rights Act is enacted to read:

"[NEW MATERIAL] PREGNANT EMPLOYEE--REASONABLE ACCOMMODATION.--

A. It is unlawful for an employer to deny a request for reasonable accommodation made by a pregnant employee if:

(1) the employee's request is based on the advice of her health care provider that reasonable accommodation is medically advisable; and

(2) the requested accommodation will not cause an undue hardship upon the employer.

B. An employee who seeks accommodation as a pregnant employee and her employer shall engage in a good faith interactive process to identify and implement the employee's request for reasonable accommodation, as set forth in this section.

C. An employer may require a medical certification substantiating the employee's need for reasonable accommodation.

D. A pregnant employee who seeks reasonable accommodation shall:

(1) provide timely oral or written notice sufficient to make the employer aware that the employee needs reasonable accommodation, and, where practicable, the anticipated timing and duration of the reasonable accommodation;

(2) provide the employer at least fifteen days' advance notice before the start of reasonable accommodation, if the need for the reasonable accommodation is foreseeable;

(3) consult with the employer and make a reasonable effort to schedule any planned appointment or medical treatment to minimize disruption to the employer's operations, subject to the health care provider's approval; or

(4) provide notice to her employer that reasonable accommodation is needed as soon as practicable in cases where a need for reasonable accommodation is not reasonably foreseen due to a change in circumstances, a medical emergency or other good cause shown.

E. An employer:

(1) shall not deny reasonable accommodation, the need for which is an emergency or is otherwise unforeseeable, on the basis that the employee did not provide adequate advance notice of the need for the reasonable accommodation;

(2) shall respond to the reasonable accommodation request as soon as practicable and, in any event, no later than ten calendar days after receiving the request for reasonable accommodation; and

(3) may require, as a condition of granting reasonable accommodation, that a pregnant employee obtain written medical certification from the employee's health care provider; provided that the employer shall notify the employee of:

(a) the need to provide reasonable medical certification;

(b) the deadline for providing certification;

(d) the consequences for failing to provide medical certification; and

(e) the medical certification requirement each time a certification is required.

F. An employer may provide notice of the need for medical certification pursuant to Paragraph (3) of Subsection E of this section verbally if the pregnant employee is already on leave from her job because the need for the leave was unforeseeable. The employer shall thereafter mail or send via electronic mail or by facsimile a copy of the medical certification form to the employee or to her health care provider as the employee designates.

G. A pregnant employee shall attempt to provide notice to her employer of her need for reasonable accommodation directly, rather than through a third party, where practicable.

H. When an employer requires medical certification of the need for reasonable accommodation, the employer shall request that the pregnant employee furnish medical certification from a health care provider:

(1) at the time the employee gives notice of the need for reasonable accommodation;

(2) within two business days of the time the employee gives notice of the need for reasonable accommodation;

(3) in the case of unforeseen leave, within two business days after the leave commences; or

(4) a date later than those provided in Paragraphs (1) through (3) of this subsection if the employer later has reason to question the appropriateness of the reasonable accommodation.

I. At the time an employer requests medical certification, the employer shall also advise the pregnant employee whenever the employer finds a medical certification inadequate or incomplete and provide the employee a reasonable opportunity to cure any deficiency.

J. A medical certification indicating the medical advisability of reasonable accommodation or a transfer is sufficient if it contains:

(1) a description of the requested reasonable accommodation;

(2) a statement describing the medical advisability of the reasonable accommodation; and

(3) the date on which the need for reasonable accommodation became or will become medically advisable and the estimated duration of the reasonable accommodation.

K. If medical certification satisfies the requirements of Subsection J of this section, an employer shall accept it as sufficient. The employer shall not ask the pregnant employee to provide additional information beyond that provided in this section. An employer may require a pregnant employee to obtain medical recertification if the employee requests additional time for reasonable accommodation upon expiration of the original time period allocated.

L. An employer is responsible for complying with all applicable laws regarding the confidentiality of any medical information received.

M. In the case of a foreseeable need for reasonable accommodation, an employer may delay granting the reasonable accommodation, until the required medical certification is provided, to a pregnant employee who fails to provide timely medical certification after the employer has requested the employee to furnish the certification.

N. When the need for reasonable accommodation is not foreseeable, or in the case of recertification, a pregnant employee shall provide medical certification or recertification within the time frame requested by the employer, a time frame that shall be at least fifteen days after the employer's request, or as soon as reasonably possible under the circumstances. An employer shall grant an exception of the deadline in the case of a medical emergency. If a pregnant employee fails to provide a medical certification within a reasonable time under the pertinent circumstances, the employer may delay the employee's continuation of the reasonable accommodation.

O. As a condition of a pregnant employee's return from leave or transfer, the employer may require the employee to obtain a release to return to work from her health care provider stating that she is able to resume her original job or duties.

P. An employer shall not deny, refuse to renew or terminate a pregnant employee's health care coverage on the basis of the employee's pregnancy.

Q. As used in this section:

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

(2) "health care provider" means an individual licensed to provide health care in the state in the regular course of business;

(3) "medical certification" or "medical recertification" means a written communication from a pregnant employee's health care provider to the employer stating that it is medically advisable for the employee to be reasonably accommodated;

(4) "reasonable accommodation" means a change in the work environment or in the way a job is customarily performed that an employer implements or authorizes to effectively enable a pregnant employee to perform the essential functions of her job. "Reasonable accommodation" includes the following measures:

(a) modifying work duties;

(b) modifying work schedules to permit earlier or later hours;

(d) allowing for a reduced work schedule;

(e) providing furniture or acquiring or modifying equipment or devices;

(f) providing a reasonable amount of break time and use of a room or other location in close proximity to the employee's work area;

(g) transferring an employee; or

(h) granting paid or unpaid leave;

(5) "transfer" means reassigning temporarily a pregnant employee to a less strenuous or hazardous position or to less strenuous or hazardous duties; and

(6) "undue hardship" means an accommodation requiring significant difficulty or expense when considered in light of the following factors:

(a) the nature and cost of the accommodation;

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

(d) the effect on expenses and resources;

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

(f) the overall financial resources of the employer;

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

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

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

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