July 14, 2020

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July 14, 2020

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July 13, 2020

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What to Expect When Employees Are Expecting: New Pregnancy and Lactation Accommodation Requirements for Oregon Employers

During the summer of 2019, the Oregon legislature passed two bills broadening protections for pregnant and lactating employees, including extending lactation break requirements to apply to employers of all sizes, requiring more flexible lactation breaks, and expressly requiring reasonable accommodation for known pregnancy and childbirth related limitations.

More Flexible Lactation Accommodation for All

House Bill (HB) 2593, which took effect September 29, 2019, made several significant changes to lactation break requirements applicable to Oregon employers.

First, the new law applies to Oregon employers of all sizes, as compared to the prior law which applied only to employers with 25 or more employees. The new law provides an undue hardship exemption from lactation break requirements, but it is potentially available only to employers with fewer than 10 employees.

Second, the new law provides flexibility as to the frequency and length of lactation breaks. Whereas the old law required one 30-minute break for every four hours worked, the new law requires employers to provide “a reasonable rest period to express milk each time the employee has a need to express milk.” For some employees, this could mean that employers must now provide more frequent or longer lactation breaks.

The new law also clarifies that although an employee must provide reasonable notice of her intent to express breast milk upon returning to work, a failure to do so is not grounds for discipline.

The new law does not otherwise substantively change Oregon’s existing lactation break requirements, which remain in effect. Those continuing provisions include requirements that an employer provide lactation breaks only until an employee’s child is 18 months old, and “make reasonable efforts to provide a location, other than a public restroom or toilet stall, in close proximity to the employee’s work area for the employee to express milk in private.” Lactation breaks also remain unpaid, except to the extent they overlap with a paid break.

Another recent enactment suggests that additional lactation accommodations and rights may apply to Oregon employees under a new pregnancy accommodation law that takes effect beginning January 1, 2020. That law, described below, does not specify what other lactation accommodations may be required, and draft regulations currently under consideration by the Oregon Bureau of Labor and Industries (BOLI) provide no clarification.

More Specific Pregnancy Accommodation Requirements for (Almost) All

The Oregon legislature also passed HB 2341, which prohibits Oregon employers from discriminating against employees and applicants because of—and requires employers to provide accommodation for—“known limitations related to pregnancy, childbirth, or a related medical condition, including, but not limited to, lactation.” This new pregnancy accommodation law takes effect January 1, 2020, and applies to Oregon employers with six or more employees.

Overall, HB 2341 is consistent with existing obligations under state and federal pregnancy nondiscrimination laws. However, the law is more explicit in outlining specific accommodations employers must provide and actions they may not take, and it imposes new notice requirements.

The law expressly makes it unlawful for a covered employer, because of an employee’s or applicant’s known limitations related to pregnancy, childbirth, or a related medical condition, including lactation, to:

  • deny employment opportunities based on the need to make a reasonable accommodation;

  • fail or refuse to make reasonable accommodation, unless it would impose an undue hardship on business operations;

  • take an adverse employment action or otherwise discriminate or retaliate against the employee or applicant with respect to any term or condition of employment because the employee or applicant inquired about, requested, or used a reasonable accommodation;

  • require the employee or applicant to accept a reasonable accommodation that is unnecessary to perform her essential job duties or if she does not have a known limitation; or

  • require the employee to take leave from work if the employer can make another reasonable accommodation.

The law further specifies that reasonable accommodation may include, but is not limited to:

  • acquisition or modification of equipment or devices;

  • more frequent or longer break periods or periodic rest;

  • assistance with manual labor; or

  • modification of work schedules or job assignments.

The law is silent as to whether an employer may ask or require an employee to provide medical certification of a limitation or need for accommodation. The draft regulations currently under consideration by BOLI also do not address that issue, or other new provisions of the law.

New Notice Requirements

Under the new pregnancy accommodation law, beginning January 1, 2020, covered employers must provide employees with written notice of the new protections related to limitations due to pregnancy, childbirth, and related conditions by

  • posting notice signs in a “conspicuous and accessible” location on the premises where employees work;

  • providing written copies of the notice to new employees at the time of hire;

  • providing written copies of the notice to all existing employees by June 29, 2020; and

  • providing another written copy of the notice to an employee within 10 days after the employer receives notice that she is pregnant.

BOLI issued an optional template that employers may use to comply with these notice requirements. However, employers may prepare their own written notice, so long as it includes all required information. Employers may also consider incorporating these new requirements into their employee handbooks or other written policies.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume IX, Number 338

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About this Author

Kelly Riggs, employment law attorney, Ogletree
Associate

Kelly Riggs is an associate in the Portland office and represents public and private employers of all sizes in all aspects of employment-related litigation.  She has represented employers in federal and state courts, as well as before the EEOC, BOLI, and other state and federal agencies, and in private mediations and arbitrations, including defending claims of discrimination and harassment, retaliation and whistleblowing, public accommodations, unfair competition, breach of contract, and other common law claims.  Kelly also regularly advises employers on compliance with federal and state...

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