SARAH MCKININ, A SENIOR ASSOCIATE AT THE FEDERAL PRACTICE GROUP, PENS A COLUMN FOR GOVERNMENT EXECUTIVE ABOUT THE Pregnant Workers Fairness Act
Posted By smay || 22-Sep-2020
The Pregnant Workers Fairness Act Is Good News for Feds
The bill would ensure that an employee no longer has to choose between a healthy pregnancy and her career.
In a rare bipartisan move, the House this week passed the Pregnant Workers Fairness Act (H.R. 2694), which seeks to make it easier for women to receive reasonable accommodation when pregnancy affects their ability to work. That’s good news for federal employees and anyone working for a private entity with more than 15 employees.
This bill follows the U.S. Supreme Court’s 2015 decision in Young v. UPS, 135 S. Ct. 1338, 1354, where the Court clarified that under the Pregnancy Discrimination Act, an employer must treat a pregnant woman the same as others who are similar in their ability or inability to work but not affected by pregnancy, childbirth, or related medical conditions. In short, the Court held that pregnant women are entitled to the same reasonable accommodations afforded to other employees, but are not allowed any special treatment. Since the ruling, however, the EEOC has issued a number of decisions citing Young that seem to make it even more difficult for pregnant federal employees to obtain accommodation instead of being placed on unpaid leave until they can return to work. This bill aims to fix this so pregnant women can be afforded modifications to their job duties to allow them to continue working.
The language in the bill is modeled after the Americans with Disabilities Act and contains many of the same definitions such as what constitutes a “reasonable accommodation” request as well as what situations pose an “undue hardship” for employers that would allow them to deny the requested accommodation. The bill also expressly denounces simply providing pregnant workers leave during their pregnancies, advising that an employer cannot require an employee to take leave if another reasonable accommodation is available. This is an important distinction, as many employers could otherwise comply with a duty to accommodate by offering either sick leave or leave without pay, both of which can be a detriment to workers who either miss out on career-advancing opportunities or lose pay just as their families (and the costs associated with raising children) are growing.
In addition to clarifying rights and responsibilities of employees and employers with respect to reasonable accommodation of pregnancy-related medical issues, the bill also provides protection against retaliation for employees who seek such accommodation.
In today’s contentious political climate, it is gratifying that the bill received bipartisan support. The reality is that women now make up the majority of the workforce and a fair percentage of them will become pregnant during their careers. If accommodation can be provided to pregnant workers that will not create an undue burden to employers, it creates a win-win situation—employers benefit from employees’ continued service for the duration of their pregnancies, and workers don’t have to choose between a healthy pregnancy and their careers.
Now it’s time for the Senate to step up.
Sarah McKinin is a senior associate at the Federal Practice Group and has substantive experience in federal employment. The Federal Practice Group represents employees seeking reasonable accommodations for disabilities and employees who have been subjected to discrimination or reprisal related to their disabilities.