Nevada’s Recent Employment Bills Impact Licensed Contractors
By: Dora Lane
Senate Bill (SB) 253
The bill created the Nevada Pregnant Workers’ Fairness Act, which applies to employers with 15 or more employees (for at least 20 weeks in the current or preceding year). The bill makes it unlawful for an employer to do any of the following (except for where the action is taken based upon a bona fide occupational qualification):
- Refuse to provide a reasonable accommodation to a female employee or applicant, if requested, for a condition of the employee or applicant relating to pregnancy, childbirth or a related medical condition, unless the accommodation would impose an undue hardship on the business (as discussed below);
- Take an adverse employment action against a female employee because the employee requests or uses a reasonable accommodation for a condition of the employee related to pregnancy, childbirth or a related medical condition, such as failing to promote the employee, requiring the employee to transfer to another position, declining to reinstate the employee to the same or equivalent position after the employee comes back to work, or taking “any other action which affects the terms or conditions of employment in a manner which is not desired by the employee.”
- Deny an employment opportunity to a qualified female applicant or employee based on their need for a reasonable accommodation for a condition related to pregnancy, childbirth, or a related medical condition;
- Require a female applicant or employee who is affected by a condition related to pregnancy, childbirth, or a related medical condition to accept an accommodation that the employee or applicant did not request or chooses not to accept; and
- Require a female employee who is affected by a condition related to pregnancy, childbirth, or a related medical condition to take leave from employment if a reasonable accommodation for any such condition of the employee is available that would allow the employee to continue to work.
The bill defines a condition related to pregnancy, childbirth, or a related medical condition as a physical or mental condition intrinsic to pregnancy or childbirth that includes, without limitation, lactation or the need to express breast milk for a nursing child. “Related medical condition” is further defined as any medically recognized physical or mental condition related to pregnancy, childbirth, or recovery from pregnancy or childbirth, such as mastitis or other lactation-related medical condition, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, loss or end of pregnancy and recovery from loss or end of pregnancy.
Employers who are licensed contractors under NRS Chapter 624 are not subject to the requirement to provide suitable breast milk expression facilities (other than a bathroom) if the employee is performing work on a construction site located more than 3 miles from the employer’s regular place of business. Employers licensed under NRS Chapter 624 are, instead, encouraged to provide suitable breast milk expression facilities to the extent practicable. Employers licensed under NRS Chapter 624 are also exempt from the requirements of Sections 4 and 5 above (requiring undesired accommodations or requiring leave) if the employee’s work duties include manual labor.
In the event an employee seeks a reasonable accommodation, the bill requires the employer and employee to engage in a timely, good-faith interactive process to arrive at an effective, reasonable accommodation for the employee. Reasonable accommodations for applicants are also required. Examples of reasonable accommodations include things like: (1) modifying equipment or providing different seating; (2) revising break schedules (as to frequency or duration); (3) providing a space in an area other than a bathroom that might be used for expressing breast milk; (4) providing assistance with manual labor if the manual labor is incidental to the primary work duties of the employee; (5) authorizing light duty; (6) temporarily transferring the employee to a less strenuous or hazardous position; or (7) restructuring a position or providing a modified work schedule.
An employer is not, however, required to create a new position as an accommodation (unless the employer has created or would create such a position to accommodate other classes of employees). An employer is also not required to fire another employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job (unless the employer has taken or would take such an action to accommodate other classes of employees).
An employer seeking to show that a requested accommodation is an undue burden has to demonstrate that the accommodation is significantly difficult to provide or expensive, considering, without limitation, (1) the nature and cost of the accommodation; (2) the overall financial resources of the employer; (3) the overall size of the employer’s business with respect to the number of its employees, and the number, type, and location of available facilities; (4) and the effect the accommodation would have on the employer’s expenses and resources or on the employer’s operations. Evidence that the employer provides or would be required to provide a similar accommodation to a similarly situated applicant or employee creates a rebuttable presumption that the accommodation does not impose an undue hardship on the employer.
SB 253 also requires employers to provide a written or electronic notice of the rights conferred by the Nevada Pregnant Workers’ Fairness Act to employees, including the right that a female employee is entitled to a reasonable accommodation for a condition related to pregnancy, childbirth, or a related medical condition. The notice must be provided upon commencement of employment and within 10 days after the employee notifies her supervisor that she is pregnant. The notice must also be posted in a conspicuous place at the employer’s business location, in an area accessible to employees.
SB 253 provides anti-retaliation protections for employees or applicants who oppose any practice made unlawful by the Nevada Pregnant Workers’ Act, or who have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing related to the Act.
Private employers are similarly required to provide an employee who is a mother of a child under 1 year of age with (1) reasonable break time, with or without pay, to express breast milk as needed; and (2) a place (other than a bathroom), which is reasonably free from dirt and pollution, protected from the view of others and free from intrusion by others, where the employee may express breast milk. If break time must be compensated because of an existing collective bargaining agreement, then any break time taken to express milk must also be compensated.
If a private employer determines that providing reasonable break time and suitable breast milk expression facilities will cause an undue burden on the employer, the employee and the employer may meet to agree on a reasonable alternative. If the parties cannot reach an agreement, the employer can require the employee to accept the reasonable alternative selected by the employer. Private employers are subject to the same anti-retaliation requirements listed above for public employers.
AB 113 does not apply to private employers who employ fewer than 50 employees if the requirements it imposes would constitute undue hardship on the employer, considering the size, financial resources, nature, and structure of the employer’s business. In addition, contractors licensed under NRS Chapter 624 are not required to comply with AB 113 with regard to employees who perform work at a construction jobsite located at least 3 miles from the employer’s regular place of business.
GENERAL EMPLOYMENT BILL
SB 361 provides that an employee who has been employed for least 90 days and who is a victim of domestic violence, or whose family or household member is a victim of domestic violence, is entitled to up to 160 hours of leave in one 12-month period, assuming the employee is not the alleged perpetrator. A “family or household member” means a spouse, domestic partner, minor child, or parent or another adult who is related within the first degree of consanguinity or affinity to the employee, or other adult person who is or was actually residing with the employee at the time the act of domestic violence was committed.
The leave allowed under SB 361 may be paid or unpaid, and may be used intermittently or in a single block of time. The leave must be used within 12 months after the date when the act of domestic violence is committed. If used for FMLA-qualifying purposes, the leave must be deducted from the employee’s total FMLA leave entitlement.
SB 361 allows leave for the following reasons:
- For the diagnosis, care, or treatment of a health condition related to an act of domestic violence committed against the employee or the employee’s family or household member;
- To obtain counseling or assistance related to an act of domestic violence committed against the employee or the employee’s family or household member;
- To participate in court proceedings related to an act of domestic violence committed against the employee or the employee’s family or household member; or
- To establish a safety plan, including any action to increase the safety of the employee or the employee’s family or household member from a future act of domestic violence.
SB 361 requires an employee who has used any leave allowed under the bill to give his or her employer at least 48 hours notice if the employee needs to use additional leave for any of the purposes outlined above.
Employers are obligated to make reasonable accommodations which will not create undue hardship for an employee who is a victim of domestic violence (or whose family or household member is such a victim). These accommodations may include: (a) a transfer or reassignment; (b) a modified schedule; (c) a new telephone number for work; or (d) any other reasonable accommodation which will not create an undue hardship deemed necessary to ensure the safety of the employee, the workplace, the employer, and other employees. An employer may require an employee to provide documentation that confirms or supports the need for a reasonable accommodation.
Employers may require employees to present documentation substantiating the need for leave, such as a police report, a copy of an application for a protective order, an affidavit from an organization that provides assistance to victims of domestic violence, or documentation from a physician. Any substantiating documentation provided to the employer must be treated confidentially and must be retained in a manner consistent with the FMLA requirements.
In addition, employers are required to keep a record of the hours taken pursuant to SB 361 for a 2-year period following the entry of the information in the record and make these records available to inspection by the Nevada Labor Commissioner upon request. When producing records pursuant to an inspection request, employee names must be redacted, unless a request for a record is made for investigation purposes.
SB 361 further directs the Nevada Labor Commissioner to prepare a bulletin setting forth the rights conferred by SB 361, post the bulletin on its web site, and require all employers to post the bulletin in a conspicuous location in the employer’s workplace. The bulletin may be included in the posting already required by NRS 608.013.
SB 361 also states that an otherwise eligible employee may not be denied unemployment benefits if the employee left employment to protect himself or herself (or a family or household member) from an act of domestic violence, and the person actively engaged in an effort to preserve employment.
Employers are prohibited from denying an employee’s right to use leave under SB 361, requiring an employee to find a replacement as a condition to using leave under SB 361, or retaliating against an employee for using leave under SB 361. It is also unlawful for employers to discharge, discipline, discriminate in any manner or deny employment or promotion to, or threaten to take any such action against an employee because:
- The employee sought leave under SB 361;
- The employee participated as a witness or interested party in court proceedings related to domestic violence, which triggered the use of leave under SB 361;
- The employee requested an accommodation pursuant to SB 361; or
- The employee was subjected to an act of domestic violence at the workplace.