Pregnant Workers Fairness Act Reintroduced

Allen Smith, J.D. By Allen Smith, J.D. March 5, 2021
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​Employers will be required to reasonably accommodate workers and job applicants who need accommodations due to pregnancy, childbirth and related medical conditions if the recently reintroduced Pregnant Workers Fairness Act is enacted.

The bill passed the U.S. House of Representatives last September by a 329-73 vote but fizzled in the Senate. Reintroduced in the House in February, "the prospects of passage are much brighter now than in the past," said Rae Vann, an attorney with Carlton Fields in Washington, D.C., and Hartford, Conn. Democrats and Republicans are tied 50-50 in the Senate, and Vice President Kamala Harris has the tie-breaking vote, though 60 votes are needed to break a filibuster.

In the previous Congress, the Society for Human Resource Management (SHRM) supported the bill, which would clarify employers' obligations and employees' rights. The bill "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 September 2020 letter to House Speaker Nancy Pelosi, D-Calif., and House Minority Leader Kevin McCarthy, R-Calif.

The legislation "closely aligns with the Americans with Disabilities Act (ADA), 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."

Current Law

Currently, there is no right under Title VII of the Civil Rights Act of 1964, as amended by the 1978 Pregnancy Discrimination Act (PDA), to workplace pregnancy accommodations, Vann said. Reasonable accommodations under the ADA are available only to qualified individuals with disabilities, including those disabilities related to pregnancy.

At least 31 states and the District of Columbia have passed bills similar to the Pregnant Workers Fairness Act, she added.

In Young v. UPS, the Supreme Court held that when an employer accommodates workers who are similar to pregnant workers in their ability to work, it cannot refuse to accommodate pregnant workers who need accommodation simply because it is more expensive or less convenient to accommodate pregnant women, said Sarah David Heydemann, senior counsel for education and workplace justice at the National Women's Law Center in Washington, D.C.

"The Young decision was an important victory for pregnant workers, but the multi-step balancing test it set out still left many important questions unanswered and created uncertainty about when exactly the PDA requires pregnancy accommodations," she said.

Young meant that an employer that reasonably accommodated employees with disabilities or who provided light duty to employees with on-the-job injuries was, in effect, required to make reasonable accommodations for pregnancy and related conditions, said Robin Shea, an attorney with Constangy, Brooks, Smith & Shea in Winston-Salem, N.C.

The Pregnant Workers Fairness Act "would make it crystal clear that employers are obligated to make reasonable accommodation for pregnancy and related conditions," Shea said. "After Young, many employers did not understand this, and the Equal Employment Opportunity Commission had quite a few settlements involving employers who thought they were required only to avoid discriminating against employees based on pregnancy."

Young created two problems, said Donna McElroy, an attorney with Dykema in San Antonio. First, "women had to know what other accommodations the employer made—which was often difficult, if not impossible, to determine." Secondly, the employer only had to do what it had done in other situations. "Thus, there was no affirmative obligation to create an accommodation even if one was possible."

Bill's Provisions

The Pregnant Workers Fairness Act is intended to fill the gaps between Title VII, the PDA, the ADA and the federal Family and Medical Leave Act, said James Plunkett, an attorney with Ogletree Deakins in Washington, D.C.

The bill would not require that a pregnant employee identify a non-pregnant worker who received accommodations to obtain her own accommodation, said Tracey Wallace, an attorney with Jackson Lewis in Dallas. Employers would be required to accommodate pregnant employees, not just workers with pregnancy-related complications, she added.

If the bill is passed, employers would need to amend their existing reasonable accommodation policies to clarify that they apply to employees who are pregnant, have pregnancy-related conditions or have recently given birth, said Emily Cuneo DeSmedt, an attorney with Morgan Lewis in Princeton, N.J.

Heydemann gave the following examples of reasonable accommodations employers might be required to provide under the bill. They might have to:

  • Modify a no-food-or-drink policy for a pregnant employee who experiences painful or potentially dangerous uterine contractions when she does not regularly drink water.
  • Provide a stool to a pregnant cashier who experiences leg pain and swelling from standing for long periods.
  • Reassign heavy lifting duties to other employees for some portion of an employee's pregnancy.
  • Provide an available light-duty position to a pregnant police officer who temporarily is unable to go on patrol because no bulletproof vest fits her.

In addition, more frequent bathroom breaks might be a reasonable accommodation, said Vicki Shabo, senior fellow, paid leave policy and strategy with New America's Better Life Lab in Washington, D.C.

As with the ADA, accommodations that result in an undue hardship would not be required, though undue hardship is a difficult standard to meet.

Wallace said potential undue hardships may involve creating new positions. For example, a pregnant woman who is a supermarket checker may request an accommodation that she perform administrative tasks because she cannot stand on her feet for eight hours. A supermarket may not have that kind of position available, and the law would not require that the business create that type of position in response to the accommodation request, Wallace said.

The legislation also would apply to job applicants. For example, Vann said, an employer would be prohibited from rejecting an applicant who discloses she will need to limit standing during the first month of her employment because of childbirth-related medical complications without trying to identify a reasonable accommodation.

The bill's protections sometimes may overlap with the ADA's, she added.

[Join us at the SHRM Workplace Policy Conference 2021 and hear from the experts on workforce development trends and public policies. Learn more and register at https://conferences.shrm.org/workplace-policy]

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