Nebraska Law Clarifies and Expands Workplace Protections for Pregnant Employees

By Scott D. Jochim, Attorney, and Daniel E. Cummings, Senior Certified Law Clerk

The Nebraska Legislature recently expanded and clarified the protections under the Nebraska Fair Employment Practices Act for pregnant workers. On April 13, 2015, Nebraska Governor Pete Ricketts signed into law LB627, which took effect on August 30, 2015.

The new law amends the Nebraska Fair Employment Practices Act to add protections from discrimination against pregnant workers. These protections are similar to the existing protections for workers with disabilities. Employers must make “reasonable accommodations” for pregnant workers. The law protects workers who are pregnant, have given birth, or have a related medical condition that have a known limitation and can perform the essential functions of their job, with or without a reasonable accommodation.

Employers may not discriminate against pregnant employees in hiring, discharge, promotion, training, compensation, or other employment matters. The law gives examples of such discrimination, which include:

• Limiting or classifying a job applicant or employee in a way that adversely affects their opportunities or status on the basis of pregnancy
• Engaging in a relationship with a third party that has the effect of subjecting a pregnant employee to discrimination
• Utilizing standards and methods of administration that have the effect of causing or perpetuating discrimination against pregnant workers
• Failing to make “reasonable accommodations” to pregnant employees with known physical limitations unless the employer can establish that the accommodation would impose an “undue hardship” on the business
• Denying employment opportunities to a job applicant or employee who is pregnant in order to avoid making a reasonable accommodation for such worker
• Using criteria that tend to screen out pregnant job applicants or employees unless such criteria is job-related for the position and consistent with a business necessity
• Conducting a medical examination or making medical inquiries to determine if an individual is pregnant, except that an employer may make inquiries and examinations to determine the individual’s ability to perform job-related functions and detect the use of illegal drugs, or conduct a medical examination after a conditional offer of employment has been made, under certain circumstances
• Requiring an employee to take leave if another reasonable accommodation can be provided for the employee’s known limitations
• Retaliating against a pregnant employee for requesting or using a reasonable accommodation

It is important to note that the above violations are examples of prohibited pregnancy discrimination, but do not constitute an exhaustive list. Any form of discrimination against pregnant job applicants or employees is prohibited.

In order to avoid running afoul of this law, risking potential liability, employers should be aware of the need to make reasonable accommodations for pregnant employees with known limitations. The law includes the following examples of reasonable accommodations:

• Acquiring equipment for sitting
• More frequent or longer breaks
• Periodic rest
• Assistance with manual labor
• Job restructuring
• Light-duty assignments
• Modified work schedules
• Temporary transfers to less strenuous or hazardous work
• Time off to recover from childbirth
• Break time and appropriate facilities for breast-feeding or expressing breast milk.

While employers are required to make reasonable accommodations for pregnant employees, they are not required to make accommodations which would be an “undue hardship” on the business. An undue hardship means something constituting significant expense or difficulty.

Employers with questions about the new law or other employment or business matters can contact the business and litigation attorneys at Croker Huck Law Firm at 402-391-6777 or at www.crokerlaw.com.

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