Benefits and Compensation, HR Management & Compliance

Congress Again Mulling Pregnancy Accommodation Bill

The newest version of the Pregnant Workers Fairness Act is heading for a vote in the U.S. House of Representatives, where it passed with ease in 2020 but didn’t make it into law.

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The bill, which would ease the way for pregnant workers seeking accommodations such as light duty and time off, contains provisions supported by both parties in Congress as well as worker rights and business interests.

Burton J. Fishman, an attorney with FortneyScott in Washington, D.C., says the bill would follow procedures set out in the Americans with Disabilities Act (ADA) to make it much easier for pregnant workers to receive accommodations.

Those procedures require employers to make reasonable accommodations for pregnancy-related work restrictions using the “interactive process,” in which employers and employees work together to find reasonable accommodations that don’t present an undue hardship on the employer. Also, workers would be entitled to protection from retaliation, coercion, and intimidation for requesting or using an accommodation.

“This is a variation on a piece of legislation that has been shopped around to state legislatures for several years,” says Lauren E.M. Russell, an attorney with Young Conaway Stargatt & Taylor, LLP, in Wilmington, Delaware, says. Her state adopted a broader version of the bill in 2014.

“Practically speaking, when Delaware passed its accommodation protections for pregnant workers, we saw very little change in the work environment,” Russell says. Regardless of whether a federal law is passed, employers should manage pregnant employees in the same manner as individuals with similar limitations, she says.

“Clearly and consistently expressing the demands of a position and expectations for job performance and documenting an employee’s needs and the accommodations granted will put employers on the right side of a dispute 95% of the time,” Russell says.

Chances for Passage

Fishman says the bill has a better chance of passing than many other pieces of the Biden administration’s social agenda, but it’s “hard to know” how resistant Senate Republicans will be. Also, Fishman notes that big business has voiced support for the bill.

“If it fails, it is likely the bill’s provisions will be imposed on federal contractors by means of Executive Order,” Fishman says.

Russell notes the Senate is evenly split between the parties, and there are several middle-of-the-road Democrats and Republicans who might break party lines to vote for or against the bill. She also notes the effect of the pandemic.

“We have a fresh, stark reminder of the damage done to communities and families when employees lose their jobs,” Russell says. “If there were ever a time where there was an appetite to protect the most vulnerable in our workforce, the post-pandemic period is it.”

Not only have organizations such as workplace rights group A Better Balance expressed support, big business also has voiced support. In a letter to leaders of the House Committee on Education and Labor, Neil L. Bradley, executive vice president and chief policy officer of the U.S. Chamber of Commerce, said the bill “would protect the interests of both pregnant employees and their employers.”

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.

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