HEATHER WHITE, A PARTNER AT THE FEDERAL PRACTICE GROUP, DISCUSSES THE PREGNANT WORKERS FAIRNESS ACT WITH FEDERAL TIMES

Posted By smay || 24-Sep-2020

How new pregnancy accommodation legislation could impact feds

Legislation designed to ensure accommodations for pregnant and post-natal workers passed the House with broad bipartisan support Sept. 17, and federal employees may be especially poised to reap the benefits of the bill, should it become law.

The Pregnant Workers Fairness Act protects an employee’s right, whether in the public or private sector, to request reasonable accommodation for health issues related to pregnancy, childbirth or related medical conditions from their employer.

“This bill would protect pregnant workers from being fired or forced to take unpaid leave when a reasonable accommodation is available,” American Federation of Government Employees National President Everett Kelley said in a statement. “No worker should have to choose between a healthy pregnancy and a paycheck.”

Such accommodations — including time off, telework or office furniture changes — are already protected for employees with disabilities, but because pregnancy is not officially categorized as a disability, pregnant workers were not guaranteed that their requests for such changes could be granted.

“They didn’t want to define it as a disability, because that sounds bad, but it did cause all of these legal problems when you needed to actually get help for medical symptoms associated with your pregnancy. You couldn’t get the protection of all of the disability stuff that was already out there,” Heather White, partner at the Federal Practice Group, told Federal Times. “This is kind of closing that circle, finally.”

Without this law, pregnant employees would have to rely on having an understanding boss or being able to prove that the same accommodation had been granted before to some non-pregnant person.

And while the bill applies to all employees, not just feds, the federal government’s existing systems to address accommodation requests means that feds would be especially primed to be able to take advantage of the new protections.

“In the federal sector, the reasonable accommodation process is already very well developed: there’s deadlines, there’s a process, many agencies have existing arrangements with occupational health specialists that they can run things by in a relatively quick manner to get an answer about does this accommodation make sense,” said White.

The COVID-19 pandemic may also add to the accommodations available to pregnant or post-natal employees, as mass telework orders have proven that many federal jobs can be done remotely for a period of time if the need arises.

Federal employees are also more likely to be aware of what to do to request such accommodations.

“Federal employees are supposed to be trained annually on [Equal Employment Opportunity] issues, and they are supposed to be aware of the process by which, if they develop a medical condition, they can just go to an established place in their agency and ask for a reasonable accommodation,” said White.

“And now if a woman learns that she’s pregnant and needs an accommodation, then her doctor would write a note for her, and say, ‘she needs to have a stool when she’s working,’ or, ‘she needs to have breaks every two hours,’ or something like that. It should be a simple matter of filling out a piece of paper, providing a note from the doctor and then she should become a part of the standard accommodation process that’s provided for people with disabilities.”

The bill would also intersect with existing pregnancy accommodations for federal employees, such as the availability of paid leave after the birth or placement of a new child and requirements that agencies provide safe, clean lactation areas. In fact, the Pregnant Workers Fairness Act would provide a stronger avenue for employees to argue against a lactation environment that they feel does not meet the requirements of being safe and clean.

The bill would also protect employees that require accommodation after a miscarriage — such as time off for physical and mental healthcare — because the law specifically calls out related medical conditions to pregnancy.

The bill’s usage of the term “employees” to describe those that are covered does mean that military personnel would not have the same benefits as feds from this bill.

“That is strictly applicable only to civilians,” said White. “The military is governed by a separate legal structure, and also unfortunately there are all of these physical fitness requirements in the military that are not applicable to most federal employees.”

The bill passed 329 to 73 in the House, but still requires Senate consideration before it can become law, which could prove more challenging in the face of other contentious issues currently on the table for that body.

“It may just get drowned out, which would really be a pity, because this is huge progress to get it through the House, finally,” said White.

Categories: Federal Employment Law, Firm News
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