Pregnant Workers Fairness Act Would Require Accommodations

Allen Smith, J.D. By Allen Smith, J.D. September 16, 2020
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a pregnant woman at the doctor's office

​The U.S. House of Representatives soon will vote on requiring employers to reasonably accommodate pregnant workers and employees with pregnancy-related conditions under the proposed Pregnant Workers Fairness Act (PWFA). The Society for Human Resource Management (SHRM) supports the bill, which would clarify employers' obligations and employees' rights.

The PWFA "provides important workplace protections for pregnant workers, while ensuring employers have flexibility and clarity regarding how best to ensure pregnant employees can remain in the workplace," SHRM wrote in a Sept. 15 letter to House Speaker Nancy Pelosi, D- Calif., and House Leader Kevin McCarthy, R- Calif.

"The PWFA closely aligns with the Americans with Disabilities Act, triggering a familiar, interactive process once an employee requests an accommodation to perform essential functions of her position," SHRM wrote. "Importantly, leave may be provided as an accommodation only after the interactive process cannot identify a reasonable accommodation within the workplace."

As with the Americans with Disabilities Act (ADA), accommodations would be required only so long as the modifications don't cause an undue hardship.

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

Need for Legislation

Although the ADA and the Pregnancy Discrimination Act have been in effect for years, "neither law is as expansive or provides as comprehensive coverage as this proposed legislation would provide for pregnant women," said Kelly Hughes, an attorney with Ogletree Deakins in Charlotte, N.C.

"While pregnancy-related complications can be considered disabilities, simply being pregnant is not a disability and therefore does not currently mandate accommodations," said Lisa McGlynn, an attorney with Fisher Phillips in Tampa, Fla.

The Pregnancy Discrimination Act says nothing about reasonable accommodation. Instead, under this law, "employers must treat employees who are pregnant or who have pregnancy-related conditions the way they would treat similarly situated nonpregnant employees," said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C.

"What this has meant historically is that a pregnant woman would have the same rights as a co-worker who had a temporary nonwork-related injury or illness—for example, a co-worker who broke his leg skiing. In other words, not many rights," she said.

In a 2015 decision, Young v. UPS, the U.S. Supreme Court ruled that under the Pregnancy Discrimination Act, employers had to make reasonable accommodations for pregnancy or pregnancy-related conditions if they would do the same for nonpregnant employees with similar limitations.

"Arguably, this meant that pregnant employees had to be accommodated if the employer made reasonable accommodations for employees with ADA-covered disabilities or with workers' compensation injuries," Shea said.

"But because the court was interpreting an anti-discrimination statute, it had to shoehorn pregnancy accommodation into the nondiscrimination framework and it wasn't an ideal fit. As a result, there has been a lot of confusion among employers about their reasonable accommodation obligations to pregnant employees," she added.

Following the ruling, over two-thirds of workers bringing suit lost their pregnancy-accommodation cases.

The PWFA would "clear up uncertainty from the UPS decision," noted Larry Lorber, an attorney with Seyfarth in Washington, D.C.

Under the PWFA, employers would have to accommodate pregnant employees "so that they can work as much and as late in their pregnancy as is feasible without proving discrimination," said Donna McElroy, an attorney with Dykema in San Antonio.

The House bill report noted the following statistics:

  • 75 percent of working women will become pregnant while employed at some time in their lives.
  • Women are increasingly either the primary or co-breadwinners of households.
  • More pregnant women work later into their pregnancies.
  • Research suggests that more than 80 percent of first-time mothers work until their final month of pregnancy.

It also highlighted the need to provide reasonable accommodations for health reasons. "Depending on the circumstances of the pregnancy, physicians recommend that pregnant women avoid or limit certain risks in the workplace, including exposure to certain compounds, heavy lifting, overnight work, extended hours, or prolonged periods of sitting or standing," the report said. "Some studies have shown increased risk of miscarriage, preterm birth, low birth weight, urinary tract infections and fainting as a result of these exposures."

Types of Accommodation

These health risks can be addressed, the bill report noted, with such simple accommodations as:

  • Seating.
  • Water.
  • Closer parking.
  • Flexible hours.
  • Appropriately sized uniforms and safety apparel.
  • Additional breaktime to use the bathroom, eat and rest.
  • Excusing the worker from activities that involve exposure to compounds not safe for pregnancy.

"Light duty is a key accommodation," Lorber said, noting that it was at issue in the Supreme Court decision.

A 2014 survey by the National Partnership for Women and Families found that the most common temporary pregnancy-related accommodation sought—cited by 71 percent of respondents—was more frequent breaks, including bathroom breaks. The same survey found that 250,000 pregnant workers nationally are denied requests for reasonable workplace accommodations each year.

Workers in Low-Wage Jobs Would Benefit from Legislation

In written testimony for a 2019 hearing on the bill, Emily Martin, vice president for education and workplace justice at the National Women's Law Center in Washington, D.C., stated, "Over 40 percent of full-time workers in low-wage jobs report that their employers do not permit them to decide when to take breaks, and roughly half report having very little or no control over the scheduling of hours."

She said this can lead to denials of pregnancy-related accommodations for low-wage workers. "This is of particular concern given that more than 1 in 5—20.9 percent—pregnant workers are employed in a low-wage job. Moreover, pregnant Black women and Latinas are disproportionately represented in low-wage jobs. Nearly 1 in 3 Black and Latina pregnant workers hold low-wage jobs—30 percent and 31.3 percent, respectively. This means a lack of clear legal rights to pregnancy accommodations likely hits Black women and Latinas particularly hard."

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