AN ACT relating to conditions of employment.

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AN ACT relating to conditions of employment. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
SECTION 1. A NEW SECTION OF KRS 344.030 TO 344.110 IS CREATED 3
TO READ AS FOLLOWS: 4
(1) An employer that requires an employee, as a condition of employment, to be 5
immunized against disease shall: 6
(a) Grant an exception to any employee for a sincere ly held religious belief 7
against immunization; 8
(b) Grant an exception to any employee for whom, in the written opinion of a 9
health care provider, the required immunization would be injurious to his 10
or her health; and 11
(c) Provide notice of the required immunization to each employee in a written 12
document that: 13
1. Advises in plain language the available exemptions from the required 14
immunization for a sincerely held religious belief or medical 15
contraindication; and 16
2. Requires each employee to acknowledge, in writing, receipt of the 17
requirement and receipt of the available exemptions. 18
(2) An employer may require an employee to swear or affirm the claimed exemption 19
on a form that substantially complies with the following: 20
"I, [employee name], swear or affirm by my signature below that I: 21
..........Hold a sincere religious belief against receiving immunization 22
against disease. 23
.........Object to the immunization as the required immunization would 24
be injurious to my health. 25
[Employee signature] ......................................... [Date]............................". 26
(3) Additional evidence or documentation of an employee's sincerely held religious 27
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belief shall not be required. 1
(4) A written opinion from a health care p rovider that the required immunization 2
would be injurious to the employee's health shall be the only documentation 3
required for an employee's claimed health exemption. 4
(5) (a) Any person injured by any act in violation of this section shall have a civil 5
cause of action in Circuit Court to: 6
1. Enjoin further violations; 7
2. Recover the actual damages sustained, including reasonable 8
attorney's fees, together with the costs of the action; and 9
3. Recover punitive damages. 10
(b) Notwithstanding the provisions of KR S 342.690, an employee who suffers 11
an adverse reaction to an immunization required as a condition of his or 12
her employment may claim compensation under KRS Chapter 342 and may 13
maintain a civil cause of action as provided under paragraph (a) of this 14
section, provided: 15
1. The amount of compensation paid under KRS Chapter 342 shall be 16
credited against the amount received in the civil action; and 17
2. If the amount of compensation paid under KRS Chapter 342 is larger 18
than the amount received in the civil action, the amount of damages 19
less the employee's legal fees, costs, and expenses in the civil action 20
shall be credited against the amount of compensation. 21
Section 2. KRS 344.030 is amended to read as follows: 22
As used in[For the purposes of] KRS 344.030 to 344.110: 23
(1) "Because of sex" and "on the basis of sex" includes but is not limited to because 24
of or on the basis of pregnancy, childbirth, or related medical conditions, and 25
women affected by pregnancy, childbirth, or related medical conditions shall be 26
treated the same for all employment -related purposes, including receipt of 27
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benefits under fringe benefit programs, as other persons not so affected but 1
similar in their ability or inability to work ["Qualified individual with a d isability" 2
means an individual with a disability as defined in KRS 344.010 who, with or 3
without reasonable accommodation, can perform the essential functions of the 4
employment position that the individual holds or desires unless an employer 5
demonstrates th at he is unable to reasonably accommodate an employee's or 6
prospective employee's disability without undue hardship on the conduct of the 7
employers' business. Consideration shall be given to the employer's judgment as to 8
what functions of a job are essenti al, and if an employer has prepared a written 9
description before advertising or interviewing applicants for the job, this description 10
shall be considered evidence of the essential functions of the job]; 11
(2) (a) "Employee" means an individual employed by an employer, but does not 12
include an individual employed by his parents, spouse, or child, or an 13
individual employed to render services as a domestic in the home of the 14
employer. 15
(b) Notwithstanding any voluntary agreement entered into between the United 16
States Department of Labor and a franchisee, neither a franchisee nor a 17
franchisee's employee shall be deemed to be an employee of the franchisor 18
for any purpose under this chapter. 19
(c) Notwithstanding any voluntary agreement entered into between the United 20
States Department of Labor and a franchisor, neither a franchisor nor a 21
franchisor's employee shall be deemed to be an employee of the franchisee 22
for any purpose under this chapter. 23
(d) For purposes of this subs ection, "franchisee" and "franchisor" have the 24
same meanings as in 16 C.F.R. sec. 436.1; 25
(3) "Employer" means a person who has eight (8) or more employees within the state in 26
each of twenty (20) or more calendar weeks in the current or preceding calendar 27
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year and an agent of such a person, except for purposes of determining 1
accommodations for an employee's own limitations related to her pregnancy, 2
childbirth, or related medical conditions, employer means a person who has fifteen 3
(15) or more employees withi n the state in each of twenty (20) or more calendar 4
weeks in the current or preceding calendar year and any agent of the person, and, 5
except for purposes of determining discrimination based on disability, employer 6
means a person engaged in an industry affe cting commerce who has fifteen (15) or 7
more employees for each working day in each of twenty (20) or more calendar 8
weeks in the current or preceding calendar year, and any agent of that person, 9
except that, for two (2) years following July 14, 1992, an emp loyer means a person 10
engaged in an industry affecting commerce who has twenty -five (25) or more 11
employees for each working day in each of twenty (20) or more calendar weeks in 12
the current or preceding year, and any agent of that person. For the purposes of 13
determining discrimination based on disability, employer shall not include: 14
(a) The United States, a corporation wholly owned by the government of the 15
United States, or an Indian tribe; or 16
(b) A bona fide private membership club (other than a labor organi zation) that is 17
exempt from taxation under Section 501(c) of the Internal Revenue Service 18
Code of 1986; 19
(4)[(3)] "Employment agency" means a person regularly undertaking with or without 20
compensation to procure employees for an employer or to procure for em ployees 21
opportunities to work for an employer and includes an agent of such person; 22
(5) "Health care provider" means: 23
(a) An advanced practice registered nurse licensed under KRS Chapter 314; 24
(b) A pharmacist licensed under KRS Chapter 315; 25
(c) A physician or osteopath licensed under KRS Chapter 311; or 26
(d) A physician assistant licensed under KRS 311.840 to 311.862; 27
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(6)[(4)] "Labor organization" means a labor organization and an agent of such an 1
organization, and includes an organization of any kind, an ag ency or employee 2
representation committee, group, association, or plan so engaged in which 3
employees participate and which exists for the purpose, in whole or in part, of 4
dealing with employers concerning grievances, labor disputes, wages, rates of pay, 5
hours, or other terms or conditions of employment, and a conference, general 6
committee, joint or system board, or joint council so engaged which is subordinate 7
to a national or international labor organization;[ 8
(5) (a) "Employee" means an individual employe d by an employer, but does 9
not include an individual employed by his parents, spouse, or child, or an 10
individual employed to render services as a domestic in the home of the 11
employer. 12
(b) Notwithstanding any voluntary agreement entered into between the Uni ted 13
States Department of Labor and a franchisee, neither a franchisee nor a 14
franchisee's employee shall be deemed to be an employee of the franchisor for 15
any purpose under this chapter. 16
(c) Notwithstanding any voluntary agreement entered into between the U nited 17
States Department of Labor and a franchisor, neither a franchisor nor a 18
franchisor's employee shall be deemed to be an employee of the franchisee for 19
any purpose under this chapter. 20
(d) For purposes of this subsection, "franchisee" and "franchisor" h ave the same 21
meanings as in 16 C.F.R. sec. 436.1;] 22
(7)[(6)] "Qualified individual with a disability" means an individual with a 23
disability as defined in KRS 344.010 who, with or without reasonable 24
accommodation, can perform the essential functions of the e mployment position 25
that the individual holds or desires unless an employer demonstrates that he is 26
unable to reasonably accommodate an employee's or prospective employee's 27
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disability without undue hardship on the conduct of the employers' business. 1
Consideration shall be given to the employer's judgment as to what functions of a 2
job are essential, and if an employer has prepared a written description before 3
advertising or interviewing applicants for the job, this description shall be 4
considered evidence of the essential functions of the job; 5
(8) "Reasonable accommodation": 6
(a) Means making existing facilities used by employees readily accessible to and 7
usable by individuals with disabilities, job restructuring, part-time or modified 8
work schedules, reassignment to a vacant position, acquisition or modification 9
of equipment or devices, appropriate adjustment or modifications of 10
examinations, training materials or policies, the provision of qualified readers 11
or interpreters, and other similar accommodations for individuals with 12
disabilities; and 13
(b) For an employee's own limitations related to her pregnancy, childbirth, or 14
related medical conditions, may include more frequent or longer breaks, time 15
off to recover from childbirth, acquisition or modification of e quipment, 16
appropriate seating, temporary transfer to a less strenuous or less hazardous 17
position, job restructuring, light duty, modified work schedule, and private 18
space that is not a bathroom for expressing breast milk; 19
(9) "Related medical condition" includes but is not limited to lactation or the need to 20
express breast milk for a nursing child and has the same meaning as that term is 21
referenced in the Pregnancy Discrimination Act, 42 U.S.C. sec. 2000e(k), and 22
shall be construed as that term has been construed under that Act; 23
(10)[(7)] "Religion" means all aspects of religious observance and practice, as well as 24
belief, unless an employer demonstrates that he is unable to reasonably 25
accommodate to an employee's or prospective employee's religious observan ce or 26
practice without undue hardship on the conduct of the employer's business[; 27
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(8) (a) The terms "because of sex" and "on the basis of sex" include but are not 1
limited to because of or on the basis of pregnancy, childbirth, or related 2
medical conditions, and women affected by pregnancy, childbirth, or related 3
medical conditions shall be treated the same for all employment -related 4
purposes, including receipt of benefits under fringe benefit programs, as other 5
persons not so affected but similar in their ability or inability to work. 6
(b) "Related medical condition" includes but is not limited to lactation or the need 7
to express breast milk for a nursing child and has the same meaning as in the 8
Pregnancy Discrimination Act, 42 U.S.C. sec. 2000e(k), and shall be 9
construed as that term has been construed under that Act]; and 10
(11)[(9)] "Undue hardship," for purposes of disability discrimination or limitations due 11
to pregnancy, childbirth, or related medical conditions as described in KRS 12
344.040(1)(c), means an action requiring significant difficulty or expense, when 13
considered in light of the following factors: 14
(a) The nature and cost of the accommodation needed; 15
(b) The overall financial resources of the facility or facilities involved in the 16
provision of the reasonable accommodation; the number of persons employed 17
at the facility; the effect on expenses and resources; or the impact otherwise of 18
such accommodation upon the operation of the facility; 19
(c) The overall financial resources of the covered entity; the overall size of the 20
business of a covered entity with respect to the number of its employees; and 21
the number, type, and location of its facilities; 22
(d) The type of operation or operations of the covered entity, including the 23
composition, structure, and fun ctions of the workforce of such entity; the 24
geographic separateness, administrative, or fiscal relationship of the facility or 25
facilities in question to the covered entity; and 26
(e) In addition to paragraphs (a) to (d) of this subsection, for pregnancy, 27
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childbirth, and related medical conditions, the following factors: 1
1. The duration of the requested accommodation; and 2
2. Whether similar accommodations are required by policy to be ma de, 3
have been made, or are being made for other employees due to any 4
reason. 5
Section 3. KRS 344.040 is amended to read as follows: 6
(1) It is an unlawful practice for an employer: 7
(a) To fail or refuse to hire, or to disc harge any individual, or otherwise to 8
discriminate against an individual with respect to compensation, terms, 9
conditions, or privileges of employment, because of the individual's race, 10
color, religion, national origin, sex, age forty (40) and over, because the 11
person is a qualified individual with a disability, or because the individual is a 12
smoker or nonsmoker, as long as the person complies with any workplace 13
policy concerning smoking; 14
(b) To limit, segregate, or classify employees in any way which would deprive or 15
tend to deprive an individual of employment opportunities or otherwise 16
adversely affect status as an employee, because of the individual's race, color, 17
religion, national origin, sex, or age forty (40) and over, because the person is 18
a qualified individual with a disability, or because the individual is a smoker 19
or nonsmoker, as long as the person complies with any workplace policy 20
concerning smoking; 21
(c) To fail to make reasonable accommodations for any employee with 22
limitations related to pregn ancy, childbirth, or a related medical condition 23
who requests an accommodation, including but not limited to the need to 24
express breast milk, unless the employer can demonstrate the accommodation 25
would impose an undue hardship on the employer's program, en terprise, or 26
business. The following shall be required as to reasonable accommodations: 27
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1. An employee shall not be required to take leave from work if another 1
reasonable accommodation can be provided; 2
2. The employer and employee shall engage in a timely, good faith, and 3
interactive process to determine effective reasonable accommodations; 4
and 5
3. If the employer has a policy to provide, would be required to provide, is 6
currently providing, or has provided a similar accommodation to other 7
classes of employe es, then a rebuttable presumption is created that the 8
accommodation does not impose an undue hardship on the employer; [ 9
or] 10
(d) To require as a condition of employment that any employee or applicant for 11
employment abstain from smoking or using tobacco prod ucts outside the 12
course of employment, as long as the person complies with any workplace 13
policy concerning smoking; or 14
(e) To require as a condition of employment that any employee be immunized 15
against disease if that employee has: 16
1. A sincerely held religious belief against immunization; or 17
2. Received the written opinion of a health care provider that the 18
required immunization would be injurious to his or her health. 19
(2) (a) A difference in employee contribution rates for smokers and nonsmokers in 20
relation to an employer -sponsored health plan shall not be deemed to be an 21
unlawful practice in violation of this section. 22
(b) The offering of incentives or benefits offered by an employer to employees 23
who participate in a smoking cessation program shall not be deemed to be an 24
unlawful practice in violation of this section. 25
(3) (a) An employer shall provide written notice of the right to be free from 26
discrimination in relation to pregnancy, childbirth, and related medical 27
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conditions, including the right to reasonable accommodations, to [: 1
1. ]new employees at the commencement of employment[; and 2
2. Existing employees not later than thirty (30) days after June 27, 2019]. 3
(b) An employer shall conspicuously post a written notice of the right to be free 4
from discrimination in relation to pregnancy, childbirth, and related medical 5
conditions, including the right to reasonable accommodations, at the 6
employer's place of business in an area accessible to employees. 7