House Approves Bill Requiring Accommodations for Pregnant Workers

The U.S. House of Representatives has approved a bill that would allow reasonable accommodation for pregnant employees, without facing the fear of retaliation. The Pregnant Workers Fairness Act (PFWA) received a 329-73 vote on Sept. 17.

The proposed legislation would require employers with 15 or more employees, whether in the private or public sector, to make “reasonable accommodations” for pregnant job applicants and employees unless such accommodations would impose an undue hardship on the employer.

Reasonable accommodations

“The bill is aimed at eliminating discrimination and promoting women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition,” according to the bill text.

The Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA) do address protections for pregnancy workers. But “There is currently no federal law that explicitly and affirmatively guarantees all pregnant workers the right to a reasonable accommodation so they can continue working without jeopardizing their pregnancy,” according to a fact sheet from the House Committee on Labor and Education.

The committee noted that data indicates that almost all — 88%— of first-time mothers worked during their last trimester.

“Physicians often recommend that pregnant workers avoid or limit certain risks in the workplace, including exposure to certain toxic substances, heavy lifting, overnight work, extended hours, or prolonged periods of sitting or standing,” the fact sheet says. “Unfortunately, many workers are forced to endure these risks because they lack access to reasonable accommodations.”

The PFWA directs the U.S. Equal Employment Opportunity (EEOC) to provide examples of reasonable accommodations. However, several of the state versions of pregnancy accommodation laws say that reasonable accommodations can include the acquisition or modification of equipment or devices; more frequent or longer break periods; assistance with manual labor; or modification of work schedules or job assignments.

Unlawful employment practices

The federal bill forbids employment practices that prevent employers from making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. A qualified employee is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position, with specified exceptions.

Specifically, the bill declares that it is an unlawful employment practice to, among other things:

• Fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity’s business operation;
• Require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
• Deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
• Require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
• Take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations

No retaliation, no coercion

Employers can not retaliate against or coerce a person who has taken advantage of their rights under the proposed law.

No state immunity

The bill also forbids states from claiming immunity to its requirements under the Eleventh Amendment to the Constitution.

What if a worker is denied?

Workers denied a reasonable accommodation under the PFWA will have the same rights and remedies as those established under Title VII of the Civil Rights Act of 1964 such as:

• Lost pay
• Compensatory damages, and
• Reasonable attorneys’ fees

Public sector employees have similar relief available under the Congressional Accountability Act, Title V of the United States Code and the Government Employee Rights Act of 1991.

However, employers can escape liability for damages where the employer has used good faith efforts to work with the employee to identify and put into place reasonable accommodations.

What is the Pregnancy Discrimination Act?

Federal law already forbids pregnancy discrimination. The Pregnancy Discrimination Act (PDA) prohibits sex discrimination on the basis of pregnancy. However, it does not explicitly state that employers must provide reasonable accommodations to pregnant workers.

However, in Young v. United Parcel Service, the U.S. Supreme Court held that the PDA requires employers to treat pregnant employees “the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”

This means if an employer offers an accommodation to non-pregnant employees, it must offer the same accommodation to a pregnant employee. The situation often arises when employers offer accommodations such as temporary light duty or temporary reassignment to workers with injuries, especially those injured on the job, but then refuse the same accommodations to pregnant workers.

But the precedent set in Young has led to pregnant workers being denied accommodations due to an “unreasonably high standard for proving discrimination,” according to the House committee. In two-thirds of cases after Young, courts ruled against pregnant workers who were seeking accommodations under the PDA, the committee said.

In two-thirds of cases after Young, courts ruled against pregnant workers who were seeking accommodations under the PDA, the committee said.

Prospects for passage

The House Committee on Labor and Education described the bill as a bipartisan proposal. It also has support from a wide range of interest groups. A letter sent to the Chairman of the Committee on Labor and Education on Jan. 13 has signatures by organizations including the U.S. Chamber of Commerce, the National Women’s Law Center, and the American Civil Liberties Union. The letter called the PWFA “a balanced approach to ensuring that pregnant employees have the maximum opportunity to stay in the workplace.”

The bill was sent to the U.S. Senate on Sept. 17 and is presently in the Committee on Health, Education, Labor, and Pensions.

Actions by individual states

While the federal government is mulling over the idea of accommodating pregnant workers, many of the states and several cities have moved forward on mandating accommodations for pregnant women. At the start of 2020, 27 states, the District of Columbia, and 4 cities required employers to provide accommodations to pregnant workers and the measures were often approved with bipartisan support, according to “A Better Balance,” a group that advocates for policies that help families.

Oregon’s “Employer Accommodation for Pregnancy Act” went into effect on Jan. 1, 2020. Maine’s “An Act to Protect Pregnant Workers” went into effect on Sept. 18, 2019. Kentucky’s pregnancy accommodation requirements went into effect in the summer of 2019.