September 21, 2021

Volume XI, Number 264

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September 20, 2021

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Louisiana Enacts Workplace Protections for Employees Disabled due to Pregnancy and Limits the Use of Criminal Background Checks in Hiring

Louisiana employers should be aware of two new laws which went into effect on August 1, 2021.  The first, Act 393, provides for reasonable accommodations of employees who become temporarily disabled due to certain pregnancy-related medical conditions.  It amends Louisiana Revised Statutes §§ 23:341 and 23:342 and enacts § 23:341.1, which apply to employers who employ more than 25 employees within the State of Louisiana.

These changes include incorporating definitions within the statutes which provide clarity to employment-related terms, such as “reasonable accommodation” or “undue hardship.”  Examples of reasonable accommodations are provided in the statutes, which include but are not limited to: (i) making existing facilities accessible and usable; (ii) providing scheduled and more frequent or longer break periods; (iii) providing a private place for the purpose of expressing breast milk; (iv) providing assistance with manual labor and limits on lifting; and (v) temporarily transferring the employee to a less strenuous or hazardous vacant position, if qualified.  See La. R.S. 23:341.1(B)(2).

Louisiana Revised Statute 23:342 already provided that a “reasonable period of time” meant the “period during which the female employee is disabled on account of pregnancy, childbirth, or related medical conditions,” provided such period does not exceed four months.  Under changes to the statute, a “reasonable period of time” is now formally defined as six (6) weeks.  The employee is entitled to utilize any accrued annual leave during this period of time, for which the period cannot exceed four months.

Additionally, Louisiana Revised Statute 23:342 was amended to provide clarity as to other unlawful employment practices, now including conduct towards a job applicant and not just an existing employee.  An employer may not (i) fail or refuse to make reasonable accommodations for an applicant or employee with covered limitations, unless the employer can demonstrate that the accommodation would impose an undue hardship; (ii) deny employment opportunities to a job applicant or existing employee, if the denial is based on the need of the employer to make reasonable accommodations; (iii) require an applicant or existing employee affected by pregnancy, childbirth, or related medical conditions, to accept an accommodation that the individual chooses not to accept; (iv) require an employee with covered limitations to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided; and (v) take adverse action against an employee with covered limitations for requesting or using a reasonable accommodation.

Finally, the statute requires employers to provide written notice to new and existing employees of the right to be free from discrimination based on medical needs arising from pregnancy, childbirth, or related medical conditions known to the employer, and to post written notice of same at their place of business in an area that is accessible to employees.  See La. R.S. 23:342(C).

The second significant change to Title 23 which went into effect on August 1, 2021 is the newly enacted Louisiana Revised Statute 23:291.2, which prohibits employers from discriminating based on criminal history records obtained in the course of a background check when making a hiring decision.  If a charge did not result in a conviction, then employers should “not request or consider an arrest record or charge.”  La. R.S. 23:291.2(A).

Louisiana Revised Statute 23:291.2 provides that when an employer is considering other types of criminal history records, the employer must make an “individual assessment” on whether the criminal history record of an applicant has a “direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position.”  When making this individual assessment, an employer “must consider all of the following”: (1) the nature and gravity of the offense or conduct; (2) the time that has elapsed since the offense, conduct, or conviction; and (3) the nature of the job sought.  La. R.S. 23:291.2(B).  Additionally, if an applicant makes a written request, an employer must “make available to the applicant any background check information used during the hiring process.”  La. R.S. 23:291.2(C).

Given these recently enacted changes, employers should review their workplace policies and practices to ensure compliance with these new requirements.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 258
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About this Author

Nicole A. Eichberger, Labor and Employment Attorney, Proskauer Law Firm
Senior Counsel

Nicole A. Eichberger is a Senior Counsel in the Labor and Employment Department, and a member of the Class/Collective Action Group and the Employee Benefits, Executive Compensation & ERISA Litigation Practice Center, resident in the New Orleans office. Nici assists clients in the defense of numerous complex employment and ERISA class and collective actions, including those alleging FLSA, ERISA and Executive Compensation Claims. Nici is also a member of the Firm’s eDiscovery Group and advises clients on eDiscovery matters, including day-to-day preservation, investigations, and...

504-310-2024
Margaret F. Swetman Employment Attorney Proskauer New Orleans
Associate

Margaret Swetman is an attorney in the Labor & Employment Law Department. Her practice involves litigating claims of unlawful discrimination, harassment, retaliation and whistleblowing, violations of non-compete and non-solicitation agreements, and unfair trade practices. Margaret regularly represents clients in employment disputes in federal and state courts and in arbitration tribunals (e.g., FINRA and AAA). She has represented clients in regulatory and administrative proceedings before FINRA, the U.S. Equal Employment Opportunity Commission, the U.S. Nuclear...

504-310-2025
Eric D. Novak Labor & Employment Proskauer Rose New Orleans, LA
Associate

Eric Novak is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Eric received his J.D. from Tulane Law School, where he was a recipient of the Jackson-Ryan Pro Bono Advocate Award and a member of the American Inn of Court, Tulane Law Chapter. While in law school, he served as a judicial extern to the Honorable James L. Dennis at the United States Court of Appeals for the Fifth Circuit and the Honorable Sarah S. Vance and the Honorable Nannette Jolivette Brown, both at the United States District Court for the...

504.310.2072
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