There appears to be strong bi-partisan support in the House of Representatives in 2021 for a piece of legislation that would change how employers respond to requests for accommodation from pregnant workers. The Pregnant Workers Fairness Act (PWFA) would clarify the accommodations provisions of the Pregnancy Discrimination Act (PDA) by requiring employers with 15 or more employees to engage in the interactive process and provide reasonable accommodation to qualified pregnant workers and applicants.
Under the present interpretation of the PDA, which was passed into law more than 40 years ago, if a woman is temporarily unable to perform her job duties due to a medical condition related to pregnancy or childbirth, the employer is required to treat her in the same way as it treats other temporarily disabled employees. For instance, if an employer provided light duty to another employee who was temporarily restricted from lifting over 30 lbs. due to a transient injury, the employer must offer the same light duty assignment to a pregnant worker who is temporarily disabled. If the employer does not offer a light duty option, however, a pregnant worker would not be entitled to such an accommodation.
The standards set forth by the PDA can leave the employer and pregnant worker in a difficult position. The employer’s goal must be to maintain lawful consistency with its employees, but the pregnant worker’s health, as well as her child’s health, may depend on following doctor’s orders which are inconsistent with her job duties. Even if available, accommodations under the PDA may not be focused on the pregnant worker’s medical needs. For instance, if the pregnant worker simply needs an additional bathroom break, light duty is a bit overboard.
The PDA gets more difficult to interpret and administer as it requires employers to provide reasonable accommodations under the Americans with Disabilities Act (ADA) to pregnant workers whose conditions related to pregnancy or childbirth qualify as a disability under the ADA. For example, the EEOC identifies gestational diabetes and preeclampsia as disabilities under the ADA – even though most cases of gestational diabetes and preeclampsia abate upon childbirth. Thus, the line between what will be considered a disability under the ADA and what will qualify as merely a “temporary disability” under the PDA is ambiguous.
Essentially, the new PWFA would clarify the accommodations provisions of the PDA by treating pregnancy the same as a disability under the ADA. As such, employers would be required to engage in the interactive process to determine whether there is a reasonable accommodation that would enable a pregnant employee with temporary medical limitations arising from her pregnancy to perform the essential functions of her position. By now, most employers are experienced in following the process set forth in the ADA and, while it has its imperfections, the standards, process, and results could be beneficial to employers and pregnant workers alike.
While the bill is expected to pass in the House during this legislative session with bipartisan support, whether it advances past the Senate is still unclear, but McMahon Berger will provide updates as they occur.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.