Legislation is on the horizon that could significantly support pregnant workers. If passed, employers would be bound to accommodate pregnant workers simply on the basis of their pregnancy, instead of requiring a pregnancy-related disability to be present or framing common pregnancy-related limitations as a disability.
Last September, the House passed the Pregnant Workers Fairness Act (“PWFA”) with overwhelming bipartisan support, 329-73, but the bill stalled in the Senate during the election season. Representative Jerry Nadler re-introduced the bill, H.R. 1065, in February as he has done every session since 2012. Now, the PWFA has 228 co-sponsors from both sides of the aisle and the support of the conservative U.S. Chamber of Commerce. The House Education and Labor Committee just cleared the bill. Assuming the Democrat-controlled Senate can invoke cloture, the PWFA is poised for enactment.
The PWFA, like the Pregnancy Discrimination Act of 1978 (“PDA”), prohibits discrimination against employees affected by pregnancy, childbirth, and related medical conditions. Like the Americans with Disabilities Act (“ADA”), the PWFA requires employers to engage in a dialogue to determine at a reasonable accommodation that protects the employee’s health and does not impose an undue hardship on the employer.
However, the PWFA differs from the PDA and ADA by strengthening the employer’s responsibility to engage in the interactive process and clarifying that an employee does not need to have a disability as defined by the ADA. Rather, the employee must have a physical or medical condition that relates to pregnancy, childbirth, or other medical conditions.
Many employers and employees were confounded by the PDA’s directive that employers should treat pregnant employees the same as others who were “similar in their ability or inability to work.” That standard placed the onerous and often impossible task on pregnant employees to identify comparators. Under the PWFA, the right to a reasonable accommodation is assumed, which should eliminate the need to find comparators.
The PWFA creates a clear mandate for employers to provide reasonable accommodations to qualified employees that are mutually agreed upon. In practice, this means that once an employee notifies the employer of her condition and possible limitations, an employer must engage in discussions with the employee about possible accommodations that can be provided until an agreement is reached. Employers can no longer unilaterally put a pregnant worker on unpaid administrative leave because she cannot safely lift 15 pounds. While placing clear responsibilities on employers, the bill provides protection from liability to employers who make “good faith efforts in consultation with the employee” to identify and make a reasonable accommodation.
Going forward, employers can demonstrate their good-faith efforts by making it known that employees can seek reasonable accommodations for pregnancy and related conditions and documenting their engagement in the interactive process. Employers may want to modify existing reasonable accommodation forms, document when conversations occurred and the accommodations discussed, and have the employee and employer sign off on the mutually agreed-upon accommodation.
Employers should not expect these conversations to end at childbirth. Common post-natal medical conditions, such as incontinence and maternal nerve damage, may require accommodations like more frequent bathroom breaks and modified workstations. With greater engagement by the employer, employees will be able to thrive in the workplace during and after pregnancy.