Bloomberg Law
Free Newsletter Sign Up
Login
BROWSE
Bloomberg Law
Welcome
Login
Advanced Search Go
Free Newsletter Sign Up

Accommodating Pregnant Workers: New Workplace Law Explained

Jan. 3, 2023, 3:30 PM

Employers will soon be required to grant reasonable accommodations for pregnant workers similar to those that are already required for disabled employees, under a newly enacted law that drew support from both worker advocates and business groups.

Congress passed the Pregnant Workers Fairness Act as an amendment added to the $1.7 trillion government funding bill that cleared both chambers last week.President Joe Biden signed the omnibus bill on Thursday and the law will take effect in June.

The PWFA, which has been introduced in every Congress since 2011, passed the House in May 2021 and cleared the Senate Health, Education, Labor and Pensions Committee that August. The bill garnered bipartisan approval, including from top employer lobbying groups such as the US Chamber of Commerce and the Society for Human Resource Management.

“This bill is about two words: reasonable accommodations,” said Sen. Bob Casey (D-Pa.), one of the sponsors of the bill in the Senate, during a Dec. 22 debate on the floor.

Without the PWFA, the legal obligation for an employer to grant reasonable accommodations for pregnant workers has been governed by a patchwork of case law and varying state protections.

1. What’s in the PWFA?

The legislation would require most employers to grant temporary and reasonable accommodations for pregnant workers, such as light duty or other arrangements.

Specifically, the PWFA would require employers with 15 or more workers to provide such arrangements for job applicants and employees with conditions related to pregnancy or childbirth. The PWFA also prohibits employers from discriminating against a job candidate or employee because of their need for a pregnancy-related accommodation.

Reasonable accommodations could include assigning light duty that doesn’t involve heavy lifting or allowing more frequent bathroom breaks.

The legislation essentially mirrors protections for disabled workers under the Americans with Disabilities Act of 1990, but for pregnant workers and on a temporary basis. It adopts the same definition of a “reasonable accommodation” as the ADA, an arrangement that doesn’t impact the essential functions of the job.

2. What will employers be required to do that they aren’t already doing?

Employers currently only must comply with the federal Pregnancy Discrimination Act, which protects workers from bias based on pregnancy or related conditions. This prohibits employers from making adverse employment decisions because of pregnancy, similar to safeguards for other protected groups under Title VII of the Civil Rights Act of 1964. The Pregnancy Discrimination Act, however, doesn’t guarantee accommodations for pregnant workers.

In the last decade, many states have stepped in where the federal government had not. Thirty states and the District of Columbia have some sort of pregnancy accommodation law, according to the National Women’s Law Center.

Federal courts have ruled that not granting reasonable accommodations for pregnant workers could be discriminatory only if the employer grants them for other workers.

3. Who will enforce the PWFA?

The PWFA will be enforced by the US Equal Employment Opportunity Commission and the US Attorney General’s Office as it pertains to private sector employees. Discrimination claims raised by federal government employees are generally taken on by the EEOC as well.

The legislation also directs the commission to issue guidance in the next two years giving examples of reasonable accommodations for pregnant workers.

The EEOC has pushed for a broader interpretation of case law surrounding pregnancy-related accommodations, at times bringing cases involving workers who were denied arrangements such as light work.

4. What have courts said about accommodations for pregnant workers?

Federal courts have generally relied on the 2015 US Supreme Court decision in Young v. United Parcel Service Inc., which said that under the Pregnancy Discrimination Act, employers making accommodations for other similarly situated workers must also provide pregnant workers with comparable accommodations.

That standard has meant that pregnant workers have only been entitled to accommodations that their employer grants to workers who aren’t pregnant, but otherwise limited in their ability to work, perhaps due to injury or disability.

Lack of an acceptable non-pregnant comparator led two-thirds of post-Young pregnancy accommodation lawsuits to fail, according to a June 2021 report from A Better Balance.

But courts have been inconsistent in their interpretation of the Young ruling. In August, for example, Walmart convinced the Seventh Circuit that it didn’t have to grant light work duties to pregnant workers even though it allowed such arrangements for workers hurt on the job. The retail giant wasn’t discriminating against pregnant workers because the policy was in place to avoid liability under a state workers’ compensation law, Walmart argued.

Read More

To contact the reporter on this story: J. Edward Moreno in Washington at jmorenodelangel@bloombergindustry.com

To contact the editor responsible for this story: Rebekah Mintzer at rmintzer@bloombergindustry.com