Posted February 18th, 2021.
By Amanda Ottaway
A bipartisan group of lawmakers recently reintroduced the Pregnant Workers Fairness Act in the U.S. House of Representatives, and experts say the bill has strong prospects for becoming law.
Currently, workers who have a health problem caused by pregnancy can seek accommodations under the Americans with Disabilities Act, but pregnancy by itself doesn’t qualify as a disability.
The PWFA would require employers with more than 15 employees to provide “reasonable accommodations” to pregnant workers. The legislation mirrors the ADA, which requires employers to accommodate workers unless the arrangements pose so-called undue hardships on the employers’ finances or resources.
President Joe Biden has backed the bill, and its sponsors say it enjoys broad support from the American public. Charles Thompson, co-chair of Ogletree Deakins Nash Smoak & Stewart PC’s leave of absence and reasonable accommodations practice, said he thinks the PWFA will make its way into law.
“I think it’ll be difficult for the GOP to take a position that Democrats will characterize as being opposed to reasonable accommodations at work for pregnant employees,” he said.
Here, lawyers point to three things to know about the bill’s potential impact.
Get Ready to Accommodate
The PWFA, if enacted, would require employers to treat pregnancy the way that disabilities are treated under the ADA. That means if a pregnant worker wants help doing their job, the employer must engage in a good-faith conversation, called the “interactive process,” about the worker’s needs and what the employer can do to assist them.
Increasing meal or bathroom breaks, limiting heavy lifting or letting an employee work from home could all be things an employer could provide.
Though the PWFA would protect pregnant workers in all situations, the COVID-19 pandemic has thrown the need for the legislation into sharp relief, its sponsors said, because pregnant people appear to be at a higher risk of severe illness or death if they contract the virus.
Experts said that remote-work arrangements could also be a reasonable accommodation. But not every worker has that option. When working from home isn’t possible, employers could consider providing high-quality personal protective equipment to front-line workers to lower their chances of getting sick on the job, said Kate Mueting, co-chair of Sanford Heisler Sharp LLP’s discrimination and harassment practice group.
Ogletree’s Thompson said employers could consider adjustments like temporarily transferring workers to positions or shifts where they don’t interact as much with the public or their colleagues; requiring masks in their businesses; or putting up plexiglass barriers to help shield pregnant employees. They could also offer job-protected leave, he said.
But moving a grocery cashier to another position to lessen their contact with the public during the pandemic might not necessarily be reasonable if there are no jobs available elsewhere at the business, said Jackson Lewis PC principal Tracey Wallace, noting that the ADA doesn’t require a job to be created as an accommodation.
Expect ADA-Style Legal Battles
If the PWFA does become law, employers and employees could end up going to the mat over what constitutes an undue hardship — much in the way they already do under the ADA, experts said.
Under the ADA, the U.S. Equal Employment Opportunity Commission defines undue hardship as a “significant difficulty or expense” based on the resources of the particular company.
“Yes, there will be situations in which an employer and an employee disagree about whether a reasonable accommodation exists, and whether implementing it would cause an undue hardship,” Thompson said. “Of course there’s going to be situations like that.”
Wallace said she sees undue burdens as being a “sticking point” of a PWFA law, alongside another common ADA battle: whether both sides engaged in the interactive process.
Mueting said employers now might be open to making accommodations that they previously would have eschewed.
“I think we’ll see a lot of conversation over what is really an undue burden,” Mueting said. “We are seeing employers make more and more accommodations to workers because of the pandemic,” she added, pointing to remote work as one example.
Even with Pregnancy Bias Already Illegal, the PWFA is a Big Deal
The PWFA would shift the burden to the employer to show why it can’t accommodate the worker as opposed to forcing the worker to show they’re being discriminated against, bill sponsor Rep. Jerry Nadler, D-N.Y., said last year.
For that reason, Jackson Lewis’ Wallace said she thinks the passage of the PWFA would be a big deal for employers.
“It says, if you are pregnant, that is a condition in and of itself where your employer has to engage in the process with you,” Wallace said.
Worker advocates say the existing Pregnancy Discrimination Act doesn’t go far enough on the question of accommodation because under the 2015 U.S. Supreme Court ruling in Young v. UPS , plaintiffs must show they were treated worse than nonpregnant colleagues with other conditions.
Sarah Brafman, senior staff attorney at the worker advocacy group A Better Balance, referenced a study by her organization that found over two-thirds of pregnant workers were losing their cases under the PDA because of its strict comparator standard.
“This comparator standard for accommodation is unique to pregnant workers,” she said.
Wallace, noting the comparator standard, said of the PWFA: “The extra law closes the loophole.”
Ogletree’s Thompson said that if faced with implementing the PWFA, employers might experience some of the same frustrations they already run into with reasonable accommodations under existing legislation.
“It will be those accommodations that take the employee out of the physical workplace” that employers might have trouble with, Thompson said, such as granting unpaid leaves of absence or remote work.
“They are used to people being at work, they’re used to supervising by seeing people, building team cultures through people being at work,” he said.
–Additional reporting by Alexis Shanes, Andrew Kragie, Anne Cullen and Vin Guerrieri. Editing by Abbie Sarfo.