Pregnancy Workers Fairness Act Heads to the Senate

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[co-author: Jamie Moelis*]

On September 17, 2020, the U.S. House of Representatives passed HR 2694, the Pregnancy Workers Fairness Act (“PWFA”), in a 329-73 vote. The Senate will now consider the bill, which, if passed, would require employers to reasonably accommodate pregnant workers and employees with pregnancy-related conditions. The bill would clarify an employer’s obligations set forth in the 2015 U.S. Supreme Court decision Young v. UPS, 135 S. Ct. 1338 (2015) and subsequent Equal Employment Opportunity Commission (“EEOC”) guidance.

Background: Young v. UPS and Subsequent EEOC Guidance

The PWFA seeks to clarify some of the unanswered questions arising from the U.S. Supreme Court’s decision in Young and subsequent EEOC guidance. In Young, the U.S. Supreme Court established a new standard for analyzing claims under the Pregnancy Discrimination Act (“PDA”). A divided court held that a pregnant worker may show that an employer’s legitimate, non-discriminatory reasons were pretextual under the McDonnell Douglas burden-shifting framework if its accommodation policies imposed a “significant burden” on pregnant workers and the employer’s reasons were not “sufficiently strong.”

While Young was intended to clarify employer obligations to accommodate pregnant workers, the decision arguably did the opposite. For example, following the Young decision, an open question for employers remained as to what might constitute a legitimate, non-discriminatory reason for treating pregnant and non-pregnant workers differently. Additionally, the Court failed to articulate what evidence was necessary to prove that an employer’s policy imposed a “significant burden” on pregnant employees or what evidence might prove that an employer’s legitimate, nondiscriminatory reasons were “sufficiently strong” to justify the burden without violating the PDA.

In response to the Young decision, the EEOC issued related guidance. Specifically, it reiterated that under the Americans With Disabilities Act (“ADA”), pregnancy is not a disability in and of itself, but an employee who has a condition arising from pregnancy or childbirth may be entitled to a reasonable accommodation under the ADA. The Young decision and subsequent EEOC guidance, however, left a perceived gap in an employers’ obligation to provide reasonable accommodations to pregnant workers who do not have a pregnancy-related disability, but who need a form of accommodation merely as a result of being pregnant. The PWFA seeks to bridge this gap.

The PWFA

The PWFA largely mirrors the accommodation requirements under the ADA. Similar to the ADA, employers with 15 or more employees must provide reasonable accommodations to qualified employees unless doing so would impose an “undue hardship.” The PWFA defines a “qualified employee” as an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified if—

(A) any inability to perform an essential function is for a temporary period;

(B) the essential function could be performed in the near future; and

(C) the inability to perform the essential function can be reasonably accommodated.

While the PWFA does not provide specific examples of what would constitute a reasonable accommodation for a qualified employee, examples of pregnancy-related reasonable accommodations under the ADA include allowing a pregnant worker to take more frequent breaks, to keep a water bottle at a work station, or to use a stool. As with the ADA, the PWFA would require that employers engage in an “interactive process” to determine the viability and feasibility of a requested accommodation.

Under the PWFA, employers would also be prohibited from (i) requiring a qualified employee to accept an accommodation other than any reasonable accommodation arrived at through the interactive process; (ii) denying employment opportunities to a qualified employee for the “known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee”; (iii) requiring a qualified employee to take paid or unpaid leave if another reasonable accommodation can be provided; and (iv) taking adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation.

The EEOC is charged with issuing regulations within two (2) years of enactment that provide examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.

Employer Takeaways

At this time, with limited legislative calendar days remaining, it is unclear when the Senate will consider the PWFA and whether it will gain Senate approval. If the PWFA does pass the Senate and is ultimately signed by the President, employers will have to revise and review their handbooks, policies and procedures to ensure compliance with the new law. Employers must also remain aware of any additional state or local laws that require certain employers to provide reasonable accommodations to pregnant workers.

We will continue monitoring developments in this area and provide updates as new information becomes available.

*Jamie Moelis is a law clerk in the Labor and Employment Practice Group

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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