On May 14, 2021, the US House of Representatives passed the Pregnant Workers Fairness Act (“PWFA” or “HR 1065”) for the second time. With 315 votes to 101, including support from all House Democrats and 99 Republicans, the PWFA is now awaiting Senate scrutiny.
As previously reported, the House of Representatives originally approved the PWFA on September 14, 2020 (“HR 2694”). While congressmen introduced versions of the PWFA in every term since 2012, the first approval took place last year. After HR 2694 passed the House of Representatives with 329 votes to 73 last September, the Senate ignored this. However, the introduction of the current version of the PWFA, HR 1065, after the election appears more likely than its predecessor. The current version has already received strong bipartisan support and, if considered, would likely have strong support from the Senate Democrats. In addition, the PWFA appears to be close to being passed, as the Senate drafted its own version, S1486, which was introduced by a bipartisan group of Senators before being sent to the Committee on Health, Education, Labor and Pensions. There are no significant differences between HR 1065 and S1486, and the PWFA has received widespread support from various employee representatives, civil rights groups, and corporate groups.
The PWFA largely follows the housing requirements of the Americans with Disabilities Act (“ADA”). Like the ADA, according to the PWFA, employers with 15 or more employees are obliged to offer qualified pregnant employees with pregnancy-related illnesses reasonable accommodation, unless the employer can prove that such a provision would constitute “undue hardship”. The law defines the term “qualified employee” as “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the job, with the exception that an employee or applicant is considered qualified if –
any inability to perform an essential function is temporary;
the essential function could be fulfilled in the near future; and
the inability to perform the essential function can be adequately compensated. “
Examples of reasonable accommodation related to pregnancy include extra breaks to drink water, a chair to rest, restriction of lifting heavy loads, and temporary assignment to other work. Like the ADA, the PWFA requires employers to take part in an “interactive process” to determine the effectiveness and feasibility of a requested accommodation.
According to the PWFA, it would be illegal for an employer to deny a qualified employee reasonable accommodation for the “known restrictions in connection with pregnancy, childbirth or related illnesses of a qualified employee”. The PWFA prohibits employers from requiring a qualified worker to: (i) take paid or unpaid leave when reasonable leave arrangements can be made; or (ii) accept inappropriate accommodation. The PWFA would also make it illegal for employers to take an adverse employment measure against a qualified worker who demands or uses reasonable accommodation in connection with pregnancy, childbirth or a related illness, or to deny employment opportunities to a qualified worker because of his or her necessity a pregnancy-related placement.
As with the ADA and other anti-discrimination laws, the PWFA would also prohibit retaliation against employees seeking pregnancy or pregnancy-related accommodation, engaging in protected PWFA-related activities, bringing charges or assisting with or participating in an investigation, or proceedings under the PWFA. However, the PWFA provides a positive defense to employers who have made “good faith efforts” an interactive process with an employee seeking reasonable accommodation under the PWFA.
When the PWFA goes into effect, the Equal Employment Opportunity Commission (“EEOC”) would be responsible for enforcing it and issuing interpretative legislation within two years of it coming into effect. The rights and legal remedies granted by the PWFA are expressly based on those provided for under Title VII of the Civil Rights Act of 1964 (“Title VII”), including compensation and punitive damages as well as legal fees. If passed in the current version, the PWFA would take effect when it came into force.
As noted, the PWFA seeks to resolve some of the issues raised by the Supreme Court decision in Young v UPS, 135 S. Ct. 1338 (2015) and the following EEOC guidelines on the accommodation of pregnant women and to clarify the employer’s obligations towards pregnant women.
What that means for employers
In the event the PWFA is enacted, employers will need to review and update their workplace policies and procedures to ensure compliance with the new law. As the PWFA largely follows the ADA, employers should already be familiar with the requirements in order to participate in the “interactive process” and make reasonable arrangements that meet the needs of a pregnant worker while avoiding undue hardship on the employer . Many employers view teleworking as reasonable accommodation related to disability, religious precautions, and pregnancy arrangements. Employers should also ensure that they comply with all applicable state and local obligations regarding the placement of pregnancies. For example, both New York State and New York City already have pregnancy placement laws in place.
Naomi Friedman, a 2021 Summer Associate (not admitted to the bar) in the firm’s New York office, helped prepare for this position.
© 2021 Epstein Becker & Green, PC All rights reserved.National Law Review, Volume XI, Number 193