Delaware Passes Legislation Protecting Pregnant Workers from Discrimination and Retaliation and Requiring Accommodations
On September 9, 2014, Governor Markell signed into law Senate Bill No. 212, as amended, which enacts new provisions to the Delaware Discrimination in Employment Act. These amendments clarify that it is unlawful for an employer to refuse to hire, to discharge, or otherwise to discriminate against an individual because of pregnancy, childbirth, or a related condition, including, but not limited to, lactation (“pregnancy”). Under this amended law, applicants and employees affected by pregnancy should be treated the same as other individuals who are unable to work as a result of a non-pregnancy related condition. Similar legislation has passed in several states and cities, including Maryland, New Jersey, Minnesota, West Virginia, Philadelphia, and New York City.
The law requires an employer to make reasonable accommodations to women who are experiencing medical limitations as a result of pregnancy, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s business operations. Accommodations include, but are not limited to, acquisition of 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, and break time and appropriate facilities for expressing breast milk.
Further, the new law prohibits an employer from forcing an applicant or employee affected by pregnancy to accept an accommodation, if such applicant or employee is not limited by the pregnancy or if such accommodation is unnecessary in order for the applicant or employee to perform the essential functions of the job. An employer is prohibited from requiring an employee affected by pregnancy to take a leave of absence under a leave law or an employer’s policy if another reasonable accommodation is available. A woman affected by pregnancy is also protected from retaliation by her employer for requesting or using a reasonable accommodation.
The law includes a posting requirement. Delaware employers are required to provide posted notice of these pregnancy rights to: (i) new employees at the commencement of employment; (ii) existing employees within 120 days after September 9, 2014; and (iii) any employee who notifies the employer of her pregnancy within 10 days of such notification. Employers should consider all aspects of this new law before making any employment decisions that affect applicants or employees who are affected by pregnancy.
Delaware Expands Whistleblower Protection for Employees
On June 22, 2014, Governor Markell signed into law House Bill No. 300, as amended, which expands employee whistleblower protections. The new amendment prohibits retaliation by an employer against an employee for refusing to engage in a violation of campaign contribution laws or for reporting or participating in an investigation, hearing, trial, or inquiry of an offense related to a violation of the campaign contribution laws. While this provision applies to employment sites where the employer is involved in political fundraising, the passage of the bill serves as an important reminder for all employers to take the necessary steps to alleviate all forms of unlawful retaliation against their employees.
Employers with Four or More Employees Are Now Subject to Delaware’s Disability-Based Employment Discrimination Law
On July 31, 2014, Governor Markell signed into law Senate Bill No. 185, as amended, which expands the anti-discrimination protections for disabled employees. Under the amended law, employers of four or more employees within Delaware must abide by the state’s employment discrimination law for all protected classes: race, marital status, genetic information, color, age, religion, sex, sexual orientation, gender identity, national origin, and disability. Prior to the enactment of the new law, only employers with 15 or more employees were subject to Delaware’s disability-based employment discrimination law. Employers with four or more employees should review their policies and practices to ensure compliance with this new law.