On September 17, 2020, the U.S. House of Representatives passed a bill, called the Pregnant Workers Fairness Act (“PWFA”), which would require employers to make reasonable accommodations for pregnant workers. The bill, HR 2694, passed by a 329-73 vote with bi-partisan support. The bill still needs to be approved by the Senate and eventually signed by the President to become law.

Currently, it is illegal for employers to discriminate against women because they are pregnant under the Pregnancy Discrimination Act (“PDA”). However, the PDA does not affirmatively require employers to provide reasonable accommodations to all pregnant employees. Courts interpreting the PDA have held that a pregnant employee who can show that her employer denied her an accommodation, while accommodating others with similar limitations, could make out a claim of discrimination if the employer’s explanation for refusing to accommodate the employee was shown to be pretextual.

This case law, as well as guidance from the Equal Employment Opportunity Commission (“EEOC”), provides a framework for analyzing these types of pregnancy discrimination claims. But many questions still remain regarding the extent of pregnant workers’ rights to a reasonable accommodation in certain circumstances, including when their pregnancy-related limitation does not rise to the level of a disability under the Americans with Disabilities Act (“ADA”).

The PWFA seeks to fill in some of these gaps. If enacted, the PWFA would provide an affirmative right to an accommodation for all pregnant workers, regardless of whether their pregnancy-related limitation rises to the level of a disability, who work for employers with more than 15 employees. More specifically, employers would be required to provide accommodations related to pregnancy, childbirth, or related medical conditions unless the accommodation would impose an undue hardship.

Employers and employees would be required to engage in the “interactive process” required by the ADA to agree on a reasonable accommodation. The PWFA would further prohibit employers from taking an adverse action against employees because of their need for an accommodation or from retaliating against an employee that has engaged in protected activity.

If passed, employers may need to adjust their current employment practices and policies to ensure compliance with the PWFA. Employers should also be aware of state and local laws that may already provide for similar protections for pregnant workers.

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