Vermont employment alert: Accommodations for pregnancy & social media account privacy

The following alert was distributed by Alexandra Clauss, Esq., a shareholder with Primmer Piper Eggleston & Cramer in Burlington: 
 
Accommodations for Pregnancy-Related Conditions
Under this new law, employers will be required to provide reasonable accommodations for pregnancy-related conditions of employees, absent undue hardship on the employer.  A pregnancy-related condition is defined as a limitation of an employee’s ability to perform the functions of a job caused by pregnancy, childbirth, or a related medical condition.  An employee with a pregnancy-related condition will have the same rights to reasonable accommodations as a qualified individual with a disability has under existing law. 
 
Under existing Vermont law, a “reasonable accommodation” means changes and modifications which can be made in the structure of a job or in the manner in which a job is performed unless it would impose an undue hardship on the employer.  Examples of possible reasonable accommodations include:  making the facilities used by the employee accessible as well as job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, and other similar actions.  Whether an accommodation constitutes an undue hardship is a fact-specific issue, though an employer’s size, budget, and the cost of the accommodation needed are considered. 
 
Employers will be required to post a notice informing employees of the provisions of this law, in a form to be provided by the Vermont Commissioner of Labor.
 
Practical Advice:

  • In advance of January 1, 2018, it is important to make supervisors aware of obligations to reasonably accommodate employees with pregnancy-related conditions and train them to recognize and respond to requests.
  • Employers should consider adopting or revising policies to ensure a procedure exists for handling accommodation requests for pregnancy-related conditions.  
  • Employers must ensure their decision-making is non-discriminatory and consistent with the law.
  • To guard against claims, employers should thoroughly document employee accommodation requests and good faith efforts taken to evaluate and respond to requests.  
  • Employers should consider involving employment counsel before any accommodation request is denied.
  • Once a notice form is provided by the Vermont Department of Labor, employers must post it in the workplace by January 1, 2018.

 
Social Media Account Privacy; Prohibitions
This law prohibits employers from requiring, requesting or coercing an applicant or employee to: (i) disclose a social media username, password, or turn over unlocked device so the employer may access the employee or applicant’s social media account; (ii) access a social media account in presence of employer; (iii) divulge or present the employee or applicant’s social media account content; (iv) change privacy settings to increase third-party access; or (v) add anyone to their list of contacts.  Social media accounts are defined broadly to include any account with an electronic medium or service through which users create, share and interact with content, such as videos, photographs, blogs, podcasts, instant or text messaging, email, and online profiles.
 
Under the law, employers are permitted to request an employee share specifically identified social media content to:  (i) comply with employer’s legal and regulatory obligations; (ii) investigate alleged unauthorized disclosure of proprietary, confidential or financial information; or (iii) investigate allegation of unlawful harassment, threats of violence or discriminatory or disparaging content concerning another employee.  In addition, the above prohibitions do not apply to a social media account that is provided by or intended to be used primarily on behalf of the employer.  The law contains other exceptions for law enforcement agencies; it permits access to employer-issued devices and does not prevent an employer from complying with requirements of other State or federal laws.
 
Retaliation against employees who exercise their rights under this law is also prohibited, and employees may not waive their rights under the law. 
 
Practical Advice:

  • In advance of January 1, 2018, employers should ensure they do not maintain practices, policies, or agreements that are inconsistent with this law. 
  • Employers should ensure supervisors are aware of new requirements concerning applicant and employee social media account privacy.
  • Employers should confirm compliance by recruiters, staffing or other temp agencies.
  • Employers should adopt a clearly defined policy on ownership and access guidelines for any employer provided electronic devices and employer-sponsored/maintained social media accounts.

Both laws are set to become 21 V.S.A. § 495k, though we expect this will be corrected.  For more information, contact Alexandra Clauss at (802) 864-0880 or aclauss@primmer.com.

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