24-34-402.3. Prohibition of discrimination - pregnancy, childbirth, and related conditions - reasonable accommodations required - notice of rights - definitions.
(1) (a) An employer shall:
(I) Provide reasonable accommodations to perform the essential functions of the job to an applicant for employment or an employee for health conditions related to pregnancy or the physical recovery from childbirth, if the applicant or employee requests the reasonable accommodations, unless the accommodation would impose an undue hardship on the employers business;
(II) Not take adverse action against an employee who requests or uses a reasonable accommodation related to pregnancy, physical recovery from childbirth, or a related condition;
(III) Not deny employment opportunities to an applicant or employee based on the need to make a reasonable accommodation related to the applicants or employees pregnancy, physical recovery from childbirth, or a related condition;
(IV) Not require an applicant or employee affected by pregnancy, physical recovery from childbirth, or a related condition to accept an accommodation that the applicant or employee has not requested or an accommodation that is unnecessary for the applicant or employee to perform the essential functions of the job; and
(V) Not require an employee to take leave if the employer can provide another reasonable accommodation for the employees pregnancy, physical recovery from childbirth, or related condition.
(b) An employer may require an employee or applicant to provide a note stating the necessity of a reasonable accommodation from a licensed health-care provider before providing a reasonable accommodation.
(2) If an applicant or an employee requests an accommodation, the employer and applicant or employee shall engage in a timely, good-faith, and interactive process to determine effective, reasonable accommodations for the applicant or employee for conditions related to pregnancy, physical recovery from childbirth, or a related condition.
(3) (a) The employer shall provide written notice of the right to be free from discriminatory or unfair employment practices pursuant to this section to:
(I) New employees at the start of employment; and
(II) Existing employees within one hundred twenty days after August 10, 2016.
(b) The employer shall post the required notice in a conspicuous place in the employers place of business in an area accessible to employees.
(4) As used in this section:
(a) Adverse action means an 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.
(b) Reasonable accommodations may include, but is not limited to, the provision of 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 if available, with return to the current position after pregnancy; job restructuring; light-duty, if available; assistance with manual labor; or modified work schedules as long as the employer is not required to do any of the following:
(I) Hire new employees that the employer would not otherwise have hired;
(II) Discharge an employee, transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job;
(III) Create a new position, including a light-duty position for the employee, unless a light-duty position would be provided for another equivalent employee; or
(IV) Provide the employee paid leave beyond that which is provided to similarly situated employees.
(c) (I) Undue hardship, in connection with a requested accommodation, means an action requiring significant difficulty or expense to the employer. In determining undue hardship, the following factors may be considered:
(A) The nature and cost of the accommodation;
(B) The overall financial resources of the employer;
(C) The overall size of the employers business with respect to the number of employees and the number, type, and location of the available facilities; and
(D) The accommodations effect on expenses and resources or its effect upon the operations of the employer.
(II) The employers provision of, or a requirement that the employer provide, a similar accommodation to other classes of employees creates a rebuttable presumption that the accommodation does not impose an undue hardship.
(5) It is a discriminatory or unfair employment practice for an employer to violate this section; except that a violation of subsection (3) of this section is not a discriminatory or unfair employment practice.
(6) (a) This section does not preempt or limit any other provision of law relating to sex discrimination or to pregnancy, physical recovery from childbirth, or a related condition.
(b) This section neither increases nor decreases an employees rights, under any other law, to paid or unpaid leave in connection with the employees pregnancy.
(7) Notwithstanding section 24-34-405, a court shall not award punitive damages in a civil action involving a claim of failure to make a reasonable accommodation for an employee for conditions related to pregnancy or the physical recovery from childbirth if the defendant demonstrates good-faith efforts to identify and make a reasonable accommodation that would provide an employee who has a health condition related to pregnancy or the physical recovery from childbirth with an equally effective opportunity and would not cause an undue hardship on the operation of the defendants business.
Source: L. 2016: Entire section added,(HB 16-1438), ch. 207, p. 742, 3, effective August 10.
For the legislative declaration in HB 16-1438, see section 1 of chapter 207, Session Laws of Colorado 2016.
Law Reviews. For article, Mediating the Interactive Process, see 46 Colo. Law. 35 (May 2017).
Employer has due process obligation to engage in good faith in an interactive process with an employee requesting an accommodation to identify employees precise limitations and to explore whether there is any accommodation that could enable employee to return to work and perform the essential functions of the job. Aubrey v. Koppes, 975 F.3d 995 (10th Cir. 2020).