Colorado, Montana, New York City

The following updates have been made to our model handbook.

Colorado Overtime

This provision details Colorado’s overtime payment requirements for non-exempt employees. The provision incorporates federal law.

Colorado Pregnancy Accommodation

Colorado Governor John Hickenlooper has signed into law a bill that makes it an unfair employment practice if an employer fails to provide reasonable accommodations to a job applicant or an employee for conditions related to pregnancy or childbirth.  It also provides greater protections for pregnant employees than those provided under federal law. 

The new law applies to most employers, regardless of size, and requires accommodations for conditions related to pregnancy or childbirth that may qualify as disabilities under the Americans with Disabilities Act.  All Colorado employers must comply with the new law, which goes into effect on August 10, 2016.

Under the new law, employers must provide reasonable accommodations to applicants and employees for health conditions related to pregnancy or the physical recovery from childbirth if the applicant or employee requests such accommodations.

The law also requires employers to engage in an interactive process with employees who request accommodations. The interactive process must be timely and conducted in good-faith to determine “effective, reasonable accommodations.”

The employer may require the applicant or employee to provide a note from her health care provider stating the need for a reasonable accommodation.

Examples of reasonable accommodations include the following:

• More frequent or longer break periods
• More frequent restroom, food, and water breaks
• Acquisition or modification of equipment or seating
• Limitations on lifting
• Temporary transfer to a less strenuous or hazardous position
• Job restructuring
• Light duty
• Assistance with manual labor
• Modified work schedules
  
  

An employer cannot require a pregnant applicant or employee to accept an accommodation that the applicant or employee has not requested and it cannot require an employee to take leave if the employer can provide another reasonable accommodation. This supports the legislative intent of keeping pregnant women employed so that they can generate income for their families.

Undue Hardship

Employers, however, are not required to provide accommodations that impose any “undue hardship” to the employer’s business.

Factors considered in determining undue hardship include:

• The nature and cost of the accommodation
• The overall financial resources of the employer
• The overall size of the employer’s business
• The effect on the expenses, resources, or operations of the employer
  
  

Employers also are not required to hire new employees, discharge employees, transfer employees with more seniority, promote unqualified employees, or create new positions.

If an employer provides an accommodation to another class of employees, but fails to provide a similar accommodation to pregnant employees; however, the law presumes the accommodation does not impose an undue hardship.

Retaliation Prohibited

Employers may not retaliate against employees who request or use a reasonable accommodation related to pregnancy, childbirth, or a related condition. The definition of “adverse action” includes “any action where a reasonable employee would have found the action materially adverse, such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The new law arguably covers a broader range of adverse employment actions than federal law.

Moreover, employers may not deny employment opportunities to an employee based on the need to make a reasonable accommodation.

Notice / Handbook Update

Beginning August 10, 2016, employers must provide new employees written notice of employees’ right to be free from discriminatory or unfair employment practices at the start of employment.

Employers must provide current employees with written notice of their rights under the new law by December 8, 2016.

As with other discrimination and employment safety laws, employers must post the required notice in a conspicuous place in the employer’s place of business. The law does not provide specific guidance on the content or language of the required notice.  However the new model handbook policy is designed to satisfy these notice requirements.

Montana About this Handbook / Disclaimer

The Disclaimer for Montana differs from all other states as Montana is the only state in the nation where employees are not at will for the duration of their employment (absent a collective bargaining agreement).

This Disclaimer will be the first page of the Handbook after the cover page and will be printed in bold prominent type. Thus, great care must be taken if any modifications are made. However, please consider the following issues, some of which apply to the entire Handbook:

We strongly recommend that employees acknowledge receipt of the update.  This is particularly important because the handbook update also updates the original handbook acknowledgement.

New York City Gender Discrimination Supplement

This handbook policy is optional but strongly recommended pursuant to recent legal enforcement guidance issued by the New York City Commission on Human Rights. Employers are encouraged to implement “internal anti-discrimination policies to educate employees…of their rights and obligations under the New York City Human Rights Law with respect to gender identity and expression, and regularly train staff on these issues.” Additionally, the Commission “may consider the lack of an adequate anti-discrimination policy as a factor in determining liability, assessing damages, and mandating certain affirmative remedies.”

Employers are also encouraged to post a sign in all single-sex facilities that states, “Under New York City Law, all individuals have the right to use the single-sex facility consistent with their gender identity or expression.”

New York City Pregnancy Accommodations

This handbook policy is optional but strongly recommended due to enforcement guidance issued by the New York City Commission on Human Rights.

Regardless of whether a policy is disseminated, employers must provide all employees, at the commencement of employment, with written notice of the employee’s right to be free from discrimination in relation to pregnancy, childbirth and related medical conditions, and it is recommended that employers use the Commission’s Pregnancy and Employment Rights poster (available on the Commission’s website at http://www.nyc.gov/html/cchr/html/publications/pregnancy-employment-poster.shtml)  to provide this notice to employees.

Per the Commission’s guidance, any time an employee notifies the employer about her pregnancy, employers should give the employee a copy of the Company pregnancy accommodations policy and remind the employee of the availability of accommodations.

Use of Social Media

The Social Media policy was revised to further conform to National Labor Relations Board guidance.  Minor edits were made to the section dealing with employee disclaimers when posting on social media sites.

The new policies may be found on FormSource under the Handbook Updates section.  We recommend that clients distribute and that employees acknowledge receipt of the new policies in writing.  The acknowledgement should be maintained in the employee’s personnel file. 

Feel free to contact the Human Capital Management Services team at (866) 400-6011 or you HR Business Partner if you have any questions.