EMPLOYMENT LAW: Legislature Passes New Legislation on Pregnancy Accommodations & Background Checks
The Louisiana legislature recently passed two bills that directly impact employers who operate and do business in Louisiana. The laws took effect on August 1, 2021 and offer enhanced protections for pregnant employees as well as providing new guidance on an employer's use of an applicant's criminal history. The new statute applies to businesses who employ 25 or more employees. It is important that businesses take note and make changes to current policies and procedures accordingly.
New Provisions in the Pregnancy Accommodation Statute
Louisiana's Pregnancy Accommodation Statute prohibits employers from discriminating against "pregnancy, childbirth and related medical conditions" in the workplace. (La. R.S. 23:341-42) In 2021, the Louisiana legislature amended this statute by adding a provision that requires employers to make reasonable accommodations for pregnant employees. A related medical condition includes breastfeeding for up to one year after giving birth. This includes providing a private place, other than a bathroom stall, for a mother to pump breast milk.
In a new "Definitions" section, the law provides examples of reasonable accommodations for pregnant employees and those with related medical conditions, including breastfeeding. It specifically states that this list may include the following, but is not meant to be exhaustive. The examples provided are as follows:
- Making existing facilities used by pregnant employees more readily accessible and usable, unless employer can show that such accommodation would cause an undue hardship to the employer
- Modification of work schedules and paid breaks and/or food and drink break policies
- Allowing more frequent sitting
- Providing more frequent bathroom breaks
- Providing assistance with manual labor and lifting limits
- Temporary transfers to a less strenuous or hazardous vacant position, if employee is qualified
- Job restructuring or light duty where available; or
- Acquiring or modifying equipment necessary for performing essential job functions
In addition, the amended law now makes it unlawful for the employer to:
- Fail or refuse to make reasonable accommodation to pregnant employees
- Deny employment opportunities or promotions to pregnant employees due to their need for reasonable accommodations
- Require an accommodation that the pregnant person has neither requested and does not need
- Force an employee to take leave rather than provide a reasonable accommodation
- An employer may not take an adverse action against a pregnant employee in retaliation for requesting or using a reasonable accommodation
- Employers should provide all employees with a written notice of their rights and protections under this statute either upon hiring, or by December 1, 2021. The notice should also be posted in a conspicuous place at the employer's workplace.
New Rules on Background Checks
The Louisiana Legislature also enacted Act 406, joining the nationwide trend referred to as the "fair chance" laws, which attempt to give job applicants with a criminal history a better shot at obtaining gainful employment. In sum, the law prohibits employers from considering any criminal history that did not result in a conviction when making a hiring decision.
The law requires businesses to make an "individual assessment" regarding an applicant's criminal history to determine whether such history has "a direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position." The statute lists three elements that businesses should evaluate when making this assessment:
- The nature and gravity of the offense or conduct
- The time that has elapsed since the offense, conduct, or conviction
- The nature of the job sought
INSURANCE LAW: New Protections Extended for Homeowners in the Aftermath of the 2020 Hurricane Season
Acts 344 & 345- Effective 8/1/21
In the aftermath of the 2020 hurricane season, Acts No. 344 and No. 345 have been passed to amend LA. R.S 22:1892 commonly referred to as the "bad faith law."
Under Act. No. 344, insurers must provide the insured with a copy of the field adjuster's report, upon request, with 15 days of the request.
Second, the minimum bad faith penalty of $1,000 is raised to $2,500 in the circumstance of a presidential or gubernatorially-declared disaster. As with the prior version of the law, penalties may be awarded up to 50% of the damage costs plus the amount of loss when the failure to pay is shown to be arbitrary and capricious.
Act 345 prohibits insurers from requiring that insureds use a network of preferred or recommended vendors to complete repairs. Insurers must inform an insured or claimant that they are under no obligation to use a preferred vendor if one is recommended.
Next, the statute requires that the general contractor's overhead and profit are included in adjustment or settlement for certain losses so long as the use of a contractor was reasonably foreseeable.
In addition, the statue places new requirements on policies that allow for depreciation. 1) a policy that allows for a deduction for depreciation must provide notice on a form approved by the commissioner 2) if applied, the insurer must provide a written explanation as to how depreciation was calculated 3) depreciation shall be "reasonable and based on a combination of objective criteria and subjective assessment, including the actual condition of the property prior to the loss."
Finally, residential property policies issued on or after January 1, 2022 must include the following language--
"Appraisal. If you and this Company fail to agree as to the amount of the loss, either party may demand that the amount of the loss be set by appraisal. If either party makes a written demand for appraisal, each party shall select a competent appraiser and notify the other party of their appraiser's identity within twenty days of receipt of the written demand for appraisal. The appraisers shall select a competent and impartial umpire; but, if after fifteen days the appraisers have not agreed upon who will serve as umpire, the umpire shall be appointed by a judge of the court of record where the property is located. The appraisers shall then appraise the loss. If the appraisers submit written notice of an agreement as to the amount of the loss to this Company, the amount agreed upon shall set the amount of the loss. If the appraisers fail to agree with in thirty days, the appraisers shall submit their differences along with any supporting documentation to the umpire, who shall apprise the loss. The appraisers may extend the time to sixty days for which they must agree upon the amount of the loss or submit their differences and supporting documents to the umpire, if the extension is agreed to by the appraisers from both parties. A written agreement signed by the umpire and either party's appraiser shall set the amount of the loss, pursuant to the appraisal process, but shall not preclude either party for exercising its rights under the policy or the law. Each appraiser shall be paid by the party selecting that appraiser. Other expenses of the appraisal and the expense of the umpire shall be divided and paid in equal shares by you and this Company. If there is an appraisal award, all applicable policy terms, limits, deductibles, and conditions will still apply. If you file a lawsuit relative to this policy against this Company prior to a demand for appraisal, the lawsuit will be held in abatement until the execution of an appraisal award." (emphasis added)
CRIMINAL LAW- Staging a Motor Vehicle Collision is Now a Crime
HB15/ Act 248- Effective 8/1/21
In response to recent cases where individuals have plead guilty to staging motor vehicle accidents, persons involved in staging motor vehicle collisions with he intent to defraud are now guilty of a crime in Louisiana. Under the Act 248, an intent to defraud is established by:
- Causing a motor vehicle collision for the purpose of obtaining anything of value
- Providing information in connection with a motor vehicle collision, knowing that the collision was intentionally caused, for the purpose of obtaining anything of value
- Providing false information in connection with a motor vehicle collision that did not occur for the purpose of obtaining anything of value.
Violators face imprisonment for up to five years, a fine up to $5,000, or both.
CIVIL LAW: Elimination of Statute of Limitations for Child Sex Abuse Victims; Retroactive "Look Back" Provision
HB 492/ Act 322- Effective 8/1/21
The Louisiana legislature enacted a statute that eliminates the legal deadline for child sex abuse claims. The law also creates a three year "look back" window for survivors. This law effectively eliminates any statute of limitations time frame for child sex abuse victims to bring claims against an abuser or a third party, such as a school or business, for damages resulting from sexual abuse committed against them during their childhood.
Previously, child sex abuse victims' right to sue expired when they turned 28 years of age. In addition to eliminating the statute of limitations for those yet to reach 28 years old, this law also retroactively revives victims' rights who have passed the 28 year age limit threshold previously in place. This retroactive provision is also known as the three year "look back" provision. In practice this means that any child sex abuse survivor, who was barred from a claim because they reached 28 years old under the previous statute, now has three years to bring a claims regardless of their current age.
CIVIL LAW: Additional Damages/ Liability For Sexual Assault Committed in the Workplace
Act 411- Effective 8/1/21
Provides specifically for liability for damages caused by sexual assault in the workplace. In addition to the general and special damages that are already afforded sexual assault victims under current law, exemplary damages may also now be levied against abusers who commit sexual assault in the workplace. The plaintiff must provide proof that the sexual assault did in fact occur in the workplace. This is significant as exemplary or punitive damages are only available in limited circumstances.
If a Court finds that an action seeking damages under this statute was frivolous or fraudulently, the defendant may be awarded court costs, reasonable attorney fees and "any other related costs to the defendant and any other sanctions and relief requested…" The Court may make this finding by motion of Defendant or on it's own motion.
CANNABIS LAW: Doctors May Now Recommend Cannabis in Inhalation and Raw/Crude Form
Act 424- Effective 1/1/22
This Act authorizes the recommendation of medical marijuana in raw or crude form as well as in inhalation form, but places limits on the amount marijuana that may be dispensed. Currently, Louisianan law allows physicians who are licensed and in good standing to recommend marijuana for therapeutic use. This is commonly known as medical marijuana.
Previously, the law did not allow physicians to recommend marijuana in inhalation form, or raw/crude form. Patients could inhale medical cannabis through a metered-dose inhaler, but were not permitted to inhale herbal, whole plant cannabis. This new legislation changes those limitations. Doctors are now permitted to recommend medical marijuana in inhalation form as well as raw/crude form.
Pharmacies limited in how much and under what circumstances they can dispense these new forms of marijuana to the public. Patients will be allowed to buy up to 2.5 ounces of flower/raw cannabis every two weeks. In addition, pharmacies may not dispense raw or crude marijuana to any individual under the age of 21 unless the person has a written order from a physician specifically recommending marijuana in a raw or crude form for their treatment.
Insurers, businesses and employers in Louisiana should heed these new changes in the law that went into effect earlier this month and evaluate current policies and practices accordingly. The attorneys in our New Orleans office stand ready to assist you with any questions or concerns you may have regarding these new requirements, or how the results of the this year's legislative session may impact your business. Please do not hesitate to reach out to a member of our team should you require further assistance.