Louisiana Enacts Workplace Protections For Employees Disabled Due To Pregnancy And Limits The Use Of Criminal Background Checks In Hiring – Employment and HR

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Louisiana has job security measures for employees disabled due to pregnancy and restricts the use of criminal background checks when hiring

September 16, 2021

Proskauer Rose LLP

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Louisiana employers should be aware of two new laws that went into effect August 1, 2021. The first Act 393 provides reasonable accommodation for workers temporarily disabled due to certain pregnancy-related illnesses. It amends the revised Louisiana Bylaws Sections 23: 341 and 23: 342 and enacts Section 23: 341.1, which applies to employers who employ more than 25 workers in the state of Louisiana.

These changes include the addition of definitions in the Articles of Association that clarify employment-related terms such as “reasonable accommodation” or “undue hardship”. Examples of reasonable accommodation are contained in the Articles of Association, which include, but are not limited to: (i) making available and using existing facilities; (ii) providing scheduled and more frequent or longer break times; (iii) providing a private place to express breast milk; (iv) manual labor assistance and lifting restrictions; and (v) temporary relocation of the employee to a less strenuous or dangerous vacancy, if qualified. See La RS 23: 341.1 (B) (2).

Louisiana Revised Statute 23: 342 already provided that “reasonable period” means “period during which the employee is incapacitated for work due to pregnancy, childbirth or similar illness”, provided that such period does not exceed four months. As part of the amendment to the Articles of Association, six (6) weeks are now formally defined as a “reasonable period”. During this period, which must not exceed four months, the employee is entitled to use the annual leave accrued.

In addition, the revised Louisiana Act 23: 342 was amended to clarify other unlawful employment practices, including conduct toward a job applicant, not just an existing employee. An employer shall not (i) fail or refuse to make reasonable accommodation for an applicant or worker with covered restrictions unless the employer can demonstrate that the accommodation would constitute undue hardship; (ii) deny employment opportunities to a job applicant or an existing employee where the denial is based on the employer’s need to make reasonable accommodation; (iii) Require an applicant or an existing employee who is affected by pregnancy, childbirth or similar illnesses to accept accommodation that the person will not accept; (iv) require an employee with Covered Restrictions to take vacation in accordance with any vacation act or vacation policy of the employer when other reasonable accommodation can be made; and (v) take adverse action against an employee with covered restrictions for requesting or using reasonable accommodation.

Finally, the law requires that employers notify new and existing employees in writing of the right to be free from discrimination on the basis of medical needs due to pregnancy, childbirth or related medical circumstances known to the employer, and this in writing at their place of business in a for the Staff accessible area. See La RS 23: 342 (C).

The second significant change to Title 23, which went into effect August 1, 2021, is the newly enacted Louisiana Revised Statute 23: 291.2, which prohibits employers from discriminating in a hiring decision based on a criminal record obtained through a background check . If a charge did not result in conviction, employers should “not initiate or consider a detention act or charge”. La RS 23: 291.2 (A).

Louisiana Revised Statute 23: 291.2 provides that when an employer is considering other types of criminal record, an “individual judgment” must be made as to whether an applicant’s criminal record is “directly and adversely related to the specific duties of the entity that may justify refusal of the job. “In making this individual assessment, an employer must” consider all of the following: (1) the nature and gravity of the offense or conduct; (2) the time that has elapsed since the offense , conduct or conviction; and (3) the nature of the job sought. La RS 23: 291.2 (B). When an applicant submits a written application, an employer must also “provide the applicant with any background check information used during the recruitment process Make available ”. La RS 23: 291.2 (C).

In light of these recent changes, employers should review their workplace policies and practices to ensure that these new requirements are being followed. As always, Proskauer lawyers are at your disposal for advice on these new laws.

Louisiana enacts job protection measures for workers disabled due to pregnancy and restricts the use of criminal background checks when hiring

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