HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE HEALTH AND HUMAN SERVICES COMMITTEE SUBSTITUTE FOR

HOUSE BILL 179

53rd legislature - STATE OF NEW MEXICO - first session, 2017

AN ACT

RELATING TO EMPLOYMENT; ENACTING THE PREGNANT WORKER ACCOMMODATION ACT; PROHIBITING DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF A NEED ARISING FROM PREGNANCY OR CHILDBIRTH OR A RELATED MEDICAL CONDITION; REQUIRING THAT EMPLOYERS MAKE REASONABLE ACCOMMODATION OF AN EMPLOYEE'S OR JOB APPLICANT'S NEED ARISING FROM PREGNANCY OR CHILDBIRTH OR A RELATED 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 PROCEDURES 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 for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, or a person or entity acting on behalf of or as an agent of an employer;

          B. "reasonable accommodation" means a modification or adaptation of the work environment, work rules or job responsibilities for as long as reasonably necessary upon an employee's request to enable the employee with a need arising from the employee's pregnancy or childbirth or a related medical condition to perform the job that does not impose an undue hardship on the employee's employer; and

          C. "undue hardship" means an employment accommodation requiring significant difficulty or expense on the part of the employer when considered in light of any of the following factors:

                (1) the nature and cost of the accommodation;

                (2) the number of persons the employer employs;

                (3) the variety of jobs performed at the employer's place of business;

                (4) the effect of the accommodation on expenses and resources;

                (5) the impact of the accommodation otherwise 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, including geographic separateness; and

                (8) the type of operation of the employer, including the composition, structure and functions of the workforce of the employer."

     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) fail to make reasonable accommodation for an employee or job applicant with a need arising from pregnancy or childbirth or a related medical condition, unless the employer demonstrates that the accommodation constitutes an undue hardship;

                (2) 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 a need arising from that person's pregnancy or childbirth or a related medical condition, including receipt of benefits under fringe benefit programs, unless based on a bona fide occupational qualification;

                (3) 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 a need arising from a person's pregnancy or childbirth or a related medical condition, unless based on a bona fide occupational qualification; and

                (4) require an employee to take paid or unpaid leave if another reasonable accommodation can be provided to the employee with a need arising from pregnancy or childbirth or a related medical condition.

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

          D. An employer shall not disclose the reason for the employee accommodation granted pursuant to the Pregnant Worker Accommodation Act, including the employee's need arising from pregnancy or childbirth or a related medical condition."

     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 related to pregnancy or childbirth or a related medical condition, including the right to reasonable accommodation for a need arising from pregnancy or childbirth or a related medical condition, to:

                (1) job applicants;

                (2) new employees at the commencement of employment;

                (3) existing employees within one hundred twenty days after the effective date of the Pregnant Worker Accommodation Act; and

                (4) within ten days of an employee giving an employer notice of pregnancy or childbirth or a related medical condition.

          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] RETALIATION PROHIBITED.--It is a violation of the Pregnant Worker Accommodation Act for an employer or any other person to refuse to hire, discharge, refuse to promote, demote or discriminate against a person in matters of compensation or leave or terms, conditions or privileges of employment in retaliation for the person having a need arising from pregnancy, childbirth or a related medical condition, for 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 6. A new section of Chapter 28 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] GRIEVANCE PROCEDURE.--

          A. A person claiming to be aggrieved by an unlawful discriminatory practice in violation of the Pregnant Worker Accommodation Act may 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 secretary of workforce solutions shall adopt and promulgate rules to carry out the provisions of the Pregnant Worker Accommodation Act and provide for grievance procedures pursuant to that act. These rules shall provide for grievance procedures pursuant to which:

                (1) an employee seeking accommodation may seek expedited review of the employee's request for accommodation; and

                (2) within twenty days of the filing of an expedited complaint by the employee seeking accommodation, the director shall:

                     (a) issue a probable cause or no probable cause determination related to the initial complaint;

                     (b) initiate the resolution of a probable cause determination through mediation or other voluntary means deemed appropriate; or

                     (c) when voluntary resolution to the complaint cannot be reached, the director shall afford the complainant a right to sue opportunity or shall file the necessary complaint with the human rights commission in accordance with the provisions of the Human Rights Act.

          C. The director shall resolve all expedited complaints under the Pregnant Worker Accommodation Act and shall issue final written findings of fact served on the complainant and the responding employer within fifty days of the complaint being filed, unless good cause is shown for a delay.

          D. An employee seeking accommodation pursuant to the Pregnant Worker Accommodation Act may request, and the director shall issue without delay upon an employee's request, an order of nondetermination after the director's receipt of the complaint and, in jointly filed cases, after the federal complaint has been closed. The order of nondetermination may be appealed pursuant to the provisions of Section 28-1-13 NMSA 1978.

          E. In addition to any judgment awarded to the plaintiff of actual damages and reasonable attorney fees, a court may order:

                (1) in its discretion, treble damages;

                (2) 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;

                (3) appropriate equitable relief, including employment reinstatement or promotion; and

                (4) in its discretion, punitive damages to an employee or job applicant.

          F. A court shall deny treble or punitive damages if an employer shows to the satisfaction of the court:

                (1) that the act or omission giving rise to an alleged violation of the Pregnant Worker Accommodation Act was consistent with an act or omission of a reasonable employer in the same or similar circumstances;

                (2) that the employer had reasonable grounds for believing that the employer's act or omission was not a violation of the Pregnant Worker Accommodation Act; or

                (3) that other good cause exists for an act or omission giving rise to an alleged violation of the Pregnant Worker Accommodation Act.

          G. As used in this section, "director" means the director of the human rights bureau of the labor relations division of the workforce solutions department."

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

     "[NEW MATERIAL] HUMAN RIGHTS ACT--CONSTRUCTION.--

          A. Nothing in the Pregnant Worker Accommodation Act shall be construed to affect any bargaining agreement, employment agreement or company policy providing remedies, rights, procedures or benefits related to pregnancy, childbirth or a related medical condition that are greater than, or in addition to, those required under that act. An employer may grant greater accommodations than those required under the Pregnant Worker Accommodation Act.

          B. Nothing in the Pregnant Worker Accommodation Act shall be construed to restrict, limit or invalidate any remedies, rights or procedures available pursuant to the Human Rights Act or pursuant to any law of any jurisdiction or at common law that provides greater or equal protection for workers. The rights, remedies and procedures under the Pregnant Worker Accommodation Act are in addition to those under the Human Rights Act and any law of any jurisdiction, including at common law, and shall not be used to construe any laws against the worker."

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