Recently, Senate Bill 301 was introduced in the Ohio Senate. This proposed legislation would enact a new provision in ORC §4113.12. Under this proposal, employers would be obligated to reasonably accommodate a pregnant employee so long as such accommodation does not create an undue hardship. Under the statute, a reasonable accommodation would include, but is not limited to, more frequent or longer breaks, acquisition or modification of equipment, seating or uniforms, assistance with manual labor, light duty, modified employment schedules, job restructuring and other examples. The statute would require employers to engage in an interactive process with a pregnant employee in order to determine what reasonable accommodations may be available.
The only defense for an employer would be that an accommodation would create an undue hardship. The undue hardship standard is similar to that found in the Americans with Disabilities Act and the Ohio Statutes concerning disability discrimination. Under the law, an employer could not require an employee affected by pregnancy to accept an accommodation that the employee chooses not to accept nor could an employer require an employee to take leave under any law providing for leave from employment or under the employer’s leave policy if the employer can make another reasonable accommodation for the pregnant employee. In other words, granting a pregnant employee leave cannot be used as a reasonable accommodation if there is another reasonable accommodation that allows the employee to work unless the employee wants to take leave in this situation.
The law further states the fact that an employer makes or would be required to make a similar accommodation to another employee creates a rebuttable presumption that the accommodation does not impose an undue hardship on the employer for purposes of the pregnant employee. This provision means that all employers will need to be much more careful about what types of reasonable accommodation are made for non-pregnant employees. For example, it is not uncommon for employers to offer light duty to employees who have an on the job injury but not light duty to off the job injuries. A reasonable interpretation of this proposed section could require employers to offer light duty to pregnant employees, even if it has a policy limiting light duty opportunities to those who are injured on duty only. If this requirement is imposed in these situations, it is also very possible that off duty injuries could be subject to light duty accommodation.
The proposed statute provides that an employee who believes she is injured by her employer’s unwillingness to reasonably accommodate her pregnancy may file a civil action in court. This new cause of action is in addition to any other claims the employee may make.
At this point, the progress of the Bill is unclear; however, there are 13 sponsors and co-sponsors in the Senate.