HB0409

HOUSE BILL 409

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

INTRODUCED BY

Terry H. McMillan

AN ACT

RELATING TO EMPLOYMENT; ENACTING NEW SECTIONS OF CHAPTER 28 NMSA 1978 AS THE "PREGNANT WORKER ACCOMMODATION ACT" TO ENSURE REASONABLE WORKPLACE ACCOMMODATIONS FOR WORKERS WHOSE ABILITY TO PERFORM THE FUNCTIONS OF A JOB ARE LIMITED BY PREGNANCY, CHILDBIRTH OR A RELATED MEDICAL CONDITION.

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. "affected by pregnancy" means a condition that, due to pregnancy, childbirth or a related medical condition, renders it medically advisable for an employee to be reasonably accommodated by her employer;

B. "disabled by pregnancy" means an employer's finding of disability on the basis that an employee's health care provider has issued a recommendation that the employee:

(1) is unable because of pregnancy to perform any one or more of the essential functions of her job or to perform any of these functions without undue risk to herself, to her pregnancy's successful completion or to other persons; or

(2) suffers from severe "morning sickness" or requires leave from her employment for prenatal or postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; childbirth; loss of or end of pregnancy; or recovery from childbirth, loss of or end of pregnancy; provided that the preceding list of conditions is intended to be nonexclusive and illustrative only;

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

D. "health care provider" means:

(1) a physician or osteopathic physician licensed in New Mexico or in another state who directly treats or supervises the treatment of the employee's pregnancy, childbirth or a related medical condition;

(2) any of the following individuals licensed in New Mexico or in another state who directly treats or supervises the treatment of an employee's pregnancy, childbirth or related medical condition while working within that individual's scope of practice:

(a) a marriage and family therapist;

(b) a doctor of oriental medicine;

(d) a certified nurse-midwife;

(e) a clinical psychologist;

(f) a physician assistant;

(g) an osteopathic physician assistant;

(h) an independent social worker;

(i) a podiatrist;

(j) a dentist;

(k) an optometrist; or

(l) a chiropractic physician; provided that a chiropractic physician's treatment is limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist; or

(3) a health care provider from whom an employer or a group health plan's benefits manager will accept medical certification of the existence of a health condition to substantiate a claim for benefits;

E. "medical certification" or "medical recertification" means a written communication from the employee's health care provider to the employer stating that the employee is disabled because of pregnancy or that it is medically advisable for the employee to be reasonably accommodated;

F. "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 an employee affected by pregnancy or disabled by pregnancy to perform the essential functions of her job. "Reasonable accommodation" includes the following measures that an employer implements:

(1) modifying work duties;

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

(3) modifying work schedules to permit more frequent breaks;

(4) allowing for a reduced work schedule;

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

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

(7) transferring an employee; or

(8) granting paid or unpaid leave;

G. "reduced work schedule" means a work schedule that permits an employee to work less than the employee's usual number of hours per work week, or hours per work day;

H. "related medical condition" means any medically recognized physical or mental condition related to pregnancy, childbirth or recovery from pregnancy or childbirth. "Related medical condition" includes lactation-related medical conditions such as mastitis, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, loss or end of pregnancy or recovery from loss or end of pregnancy;

I. "transfer" means reassigning temporarily an employee affected by pregnancy or disabled by pregnancy to a less strenuous or hazardous position or to less strenuous or hazardous duties; and

J. "undue hardship" means an accommodation 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] EMPLOYEE AFFECTED BY PREGNANCY--DISABLED BY PREGNANCY--REASONABLE ACCOMMODATION.--

A. It is unlawful for an employer to deny a request for reasonable accommodation made by an employee affected by pregnancy or disabled by pregnancy, 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 an employee affected by pregnancy or disabled by pregnancy 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 Section 4 of the Pregnant Worker Accommodation Act.

C. An employer may require a medical certification substantiating the employee's need for reasonable accommodation, as set forth in Section 4 of the Pregnant Worker Accommodation Act."

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

"[NEW MATERIAL] EMPLOYEE AFFECTED BY PREGNANCY--DISABLED BY PREGNANCY--REQUESTS FOR REASONABLE ACCOMMODATION--ADVANCE NOTICE--MEDICAL CERTIFICATION--EMPLOYER RESPONSE.--

A. An employee who seeks reasonable accommodation pursuant to the Pregnant Worker Accommodation Act 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.

B. 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 an employee who is affected by pregnancy or who is disabled by pregnancy 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.

C. An employer may provide notice of the need for medical certification pursuant to Paragraph (3) of Subsection B of this section verbally if the 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.

D. An employee shall attempt to provide notice to an employee of her need for reasonable accommodation directly, rather than through a third party, where practicable.

E. When an employer requires medical certification of the need for reasonable accommodation, the employer shall request that the 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.

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

G. 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.

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

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

J. 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 an employee who fails to provide timely medical certification after the employer has requested the employee to furnish the certification.

K. When the need for reasonable accommodation is not foreseeable, or in the case of recertification, an 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 an 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.

L. As a condition of an 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.

M. An employer shall not deny, refuse to renew or terminate an employee's health care coverage on the basis of an employee's pregnancy, childbirth or related medical condition."

SECTION 5. 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:

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

(2) within ten days of her notification, any employee who notifies the employer of her pregnancy.

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 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] ADMINISTRATIVE REVIEW.--A person claiming to be aggrieved by an unlawful 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."

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