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Pregnant Worker Accommodation Bill Could Move in the House

Oct. 22, 2019, 9:10 PM

Legislation sponsored by a Democrat that would require employers to provide reasonable accommodations to pregnant workers is finding some support across the aisle, but many Republicans are still reluctant to get behind the measure.

The Pregnant Workers Fairness Act (H.R. 2694), reintroduced by Rep. Jerry Nadler (D-N.Y.) in May, was the subject of a House Education and Labor subcommittee hearing Oct. 22. Nadler said after testifying that he believes there will be a markup on the bill soon. No date has been scheduled in the Education and Labor Committee or the other panels with jurisdiction, including the Judiciary Committee that Nadler leads.

The legislation is meant to address a U.S. Supreme Court ruling that the bill’s supporters say left ambiguities surrounding pregnant workers and their requests for accommodations on the job. As of Oct. 22, the bill is cosponsored by 119 Democrats and three Republicans—Reps. Will Hurd (Texas), Jaime Herrera Beutler (Wash.), and John Katko (N.Y.).

The bill is likely to hit a dead end in the GOP-controlled Senate if the House passes it. Republicans on the Subcommittee on Civil Rights and Human Services pointed to existing laws on the books, including the Pregnancy Discrimination Act and the Americans with Disabilities Act, as sufficient regulations to protect pregnant workers.

“Overzealous government intervention often causes more harm than good. While we are committed to preventing and combating unlawful discrimination, we should carefully examine legislation that could cause confusion and prove difficult to implement,” said Rep. James Comer (R-Ky.), the subcommittee’s top Republican.

Democrats and advocacy groups, like the National Women’s Law Center, argue the federal laws on the books leave many workers without job protections when they become pregnant and request certain accommodations to continue doing their jobs. The accommodations can include seating, water, frequent bathroom breaks, or lighter duty.

That was the case for Kimberlie Michelle Durham, who testified at the hearing. Durham said she lost her job as an emergency medical technician after requesting an accommodation when she was pregnant with her now three-year-old son. Durham said she had asked for temporary reassignment because she was told by doctors not to lift more than 50 pounds. Her job required her to frequently lift equipment and patients that often weighed more than that limit, Durham said.

The lack of protections in current law is hurting women workers and especially low paid women of color, Rep. Suzanne Bonamici (D-Ore.), chairwoman of the subcommittee, said in her opening statement. Although 27 states, Washington, D.C., and four cities require employers with more than 15 employees to provide accommodations for pregnant workers on the job, she said a federal benchmark is needed to fill the gap.

“Unfortunately, our current laws are inadequate, and many pregnant workers are placed on unpaid leave or forced out of work when they only need a simple accommodation to stay on the job during their pregnancy,” Bonamici said.

‘Broad’ Language a Problem

The legislation would require employers to make reasonable accommodations, including minor job modifications, that would allow a pregnant worker to continue employment. It would also prohibit employers from denying job opportunities to women who may need accommodations related to pregnancy, childbirth, or related medical conditions.

The measure would resolve ambiguities left open by the U.S. Supreme Court in its 2015 decision in Young v. United Parcel Service, Inc. The justices held in that case that a pregnant worker can raise a Pregnancy Discrimination Act claim by showing that her employer’s accommodations policy places a “significant burden” on pregnant employees and the employer lacks “sufficiently strong justification” for the policy.

Since the Young case approximately 70% of courts have denied reasonable accommodations for pregnant workers, Bonamici said.

This proposal may not be the cure-all Democrats hope it will be, one employment law attorney said during her testimony.

Ellen McLaughlin, a Seyfarth Shaw partner who testified at the hearing, said some of the bill’s provisions are written so broadly that they could confuse employers about their their obligations.

To contact the reporter on this story: Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com

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