- The Pregnant Workers Fairness Act was passed by the U.S. House of Representatives in a vote of 315 to 101 on May 14. Now, the Senate will consider the bill. If passed, it will require employers and job applicants to provide reasonable accommodations for pregnant women and children who are undergoing childbirth or related medical conditions.The bill passed the House last September by 329 votes to 73, but failed in the Senate. Rae Vann, an attorney at Carlton Fields in Washington, D.C. and Hartford, Conn, said that “the prospects for passage are much better now than they were in the past.” Although 60 votes are required to end a filibuster, Democrats and Republicans are tied at 50-50 in Senate.
The Society for Human Resource Management (SHRM), which supported the bill in the previous Congress, argued that it would clarify the obligations of employers and protect employees’ rights. “The bill provides important workplace protections to pregnant workers, while ensuring that employers have flexibility and clear regarding how best they can ensure that pregnant employees can stay in the workplace,” SHRM wrote to Nancy Pelosi (D-Calif.) and Kevin McCarthy (R-Calif.) in a September 2020 email.
SHRM stated that the legislation is “closely aligned with the Americans with Disabilities Act, (ADA), triggering a familiar and interactive process once an employees requests an accommodation to fulfill essential functions of her job,” SHRM wrote. Importantly, leave can only be granted as accommodation if the interactive process fails to identify reasonable accommodations within the workplace. “
Vann stated that Title VII of Civil Rights Act of 1964 (as amended by 1978 Pregnancy Discrimination Act) does not currently allow for workplace pregnancy accommodations. Only qualified persons with disabilities can receive reasonable accommodations under the ADA, even if they are related to pregnancy.
At the least 31 states have passed similar bills to the Pregnant Workers Fairness Act. She also added that at least the District of Columbia has adopted similar bills.
In Youth v. UPS , the Supreme Court ruled that an employer must accommodate workers similar to pregnant workers’ ability to work. This is a rule that applies to all employers. Sarah David Heydemann (senior counsel for education, workplace justice, National Women’s Law Center, Washington, D.C.
This meant that employers that provide reasonable accommodation for employees with disabilities or light duty to employees who have suffered on-the-job injuries were, in effect, required by law to make reasonable accommodations to pregnancy and related conditions, according to Robin Shea, an attorney at Constangy, Brooks, Smith & Prophete, Winston-Salem, N.C.
Shea stated that the Pregnant Workers Fairness Act would make it clear that employers have to provide reasonable accommodation for pregnant workers and other related conditions. Many employers didn’t understand this after Young. The Equal Employment Opportunity Commission has had quite a few settlements in which employers believed they were only required to prevent discrimination against pregnant employees. “
Donna McElroy from Dykema, a San Antonio attorney, stated that Young caused two problems. “First, women had to be able to see what accommodations were made by their employer, which was often difficult, if it wasn’t impossible, to do. The employer could only do the same thing it did in other situations. “There was therefore no obligation for the employer to make an accommodation, even if it was possible. “
The Pregnant Workers Fairness Act fills the gaps between Title VII, ADA and federal Family and Medical Leave Act, according to James Plunkett, an Ogletree Deakins attorney in Washington, D.C.
Tracey Wallace, an attorney at Jackson Lewis in Dallas, stated that the bill does not require that pregnant employees identify non-pregnant workers who have received accommodations to get her accommodation. She said that employers would have to accommodate pregnant employees and not just those with pregnancy-related complications.
Employers would need to amend existing reasonable accommodation policies if the bill is passed. This would clarify that they apply for pregnant employees, who have pregnancy-related conditions, or who have just given birth to a child, stated Emily Cuneo DeSmedt of Morgan Lewis, Princeton, N.J.
Heydemann provided the following examples of reasonable accommodations that employers may be required to make under the bill: They may have to:
- Change a no-food or drink policy for pregnant employees who experience painful or potentially deadly uterine contractions if she doesn’t regularly drink water.
- A stool is provided to a pregnant cashier suffering from leg swelling and pain after standing for long periods.
- Assign heavy lifting tasks to other employees during a portion of a pregnant employee’s time.
- Offer a light-duty position to pregnant officers who are temporarily unable to go on patrol due to lack of a bulletproof vest.
Additionally, frequent bathroom breaks could be a reasonable accommodation, according to Vicki Shabo, senior fellow, paid-leave policy and strategy at New America’s Better Life Lab, Washington, D.C.
Accommodations that do not result in undue hardship, like the ADA, would not be necessary.
Wallace suggested that potential undue hardships could require the creation of new jobs. A supermarket checker might request that a pregnant woman perform administrative tasks, as she is unable to stand for eight hours. Wallace stated that a supermarket might not have such a position and that it would not be required to create the position as a result of the accommodation request.
This legislation would also apply to job candidates. Vann stated that an employer cannot reject a candidate who discloses that she will have to reduce her standing in the first month of employment due to childbirth-related medical complications.
She said that sometimes the protections of the bill might overlap with those of the ADA.
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