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Pregnant Workers Fairness Act could expand ADA protections to larger worker pool
30/08/2021
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Emily DeSmedt
Emily Cuneo DeSmedt is an associate at Morgan, Lewis & Bockius who represents employers in a variety of matters, including the defence of wrongful termination, harassment, discrimination, and retaliation claims

The Pregnant Workers Fairness Act (PWFA), which passed the US House of Representatives on 14 May 2021, is currently before the US Senate. If passed, the PWFA will expand to all pregnant and postpartum employees and job applicants the reasonable accommodation protections that the Americans with Disabilities Act (ADA), and Title VII, as amended by the Pregnancy Discrimination Act (PDA), already grant to many pregnant employees.

Existing reasonable accommodation protections for pregnant employees

Under the ADA, employers are already required to grant reasonable accommodations to employees who have pregnancy-related conditions that qualify as disabilities, unless doing so would cause undue hardship to the employer. Pregnancy alone, however, is not, in and of itself, a disability under the ADA.

Pregnant employees who are not disabled may also already be entitled to certain reasonable accommodations under Title VII, as amended by the PDA and interpreted by the Supreme Court in Young v UPS. In Young, the Supreme Court held that employers must extend to pregnant employees any accommodations that they grant to other employees who are not disabled, but are similar to pregnant employees in their inability to work. For example, an employer who provides light duty to all employees after they suffer work-related injuries must offer the same light duty to pregnant employees who are similar in their limited ability to work or otherwise perform all the functions of their position.

But pregnant and postpartum employees and job applicants who are neither disabled nor similarly situated to employees who are already receiving accommodations are not entitled to accommodations under the ADA or Title VII. Importantly, they now would be under the PWFA.   

Key elements of PWFA

If passed, the PWFA would require any employer with at least 15 employees to grant reasonable accommodations to qualified employees and job applicants with “known limitations” related to pregnancy, childbirth, or related medical conditions, unless doing so would cause undue hardship to the employer.

A “known limitation” is a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical condition that the employee or employee’s representative has communicated to the employer.”

In other words, the PWFA will require employers to consider all physical restrictions relating to pregnancy or childbirth on the same footing as disabilities for purposes of the reasonable accommodation process, and it may eliminate the employer’s right to request documentation from a healthcare provider substantiating a pregnant employees’ restrictions.

Like the ADA, the PFWA will require employers to engage in an “interactive process” with pregnant employees to determine an appropriate accommodation, explicitly prohibiting employers from requiring employees “to accept an accommodation other than any reasonable accommodation arrived at through the interactive process.”

The PWFA will also prohibit employers from requiring qualified pregnant or postpartum employees to take leave, paid or unpaid, if another reasonable accommodation is available. Employers may not take adverse employment actions against or deny “employment opportunities” to qualified employees who request or use reasonable accommodations under the PWFA.

Examples of pregnancy-related reasonable accommodations include additional water and/or bathroom breaks, lifting restrictions, or temporary reassignment to roles that better accommodate pregnant employees’ restrictions. Like the ADA, however, the PWFA will not require employers to create new roles specifically for pregnant women.

What this means for employers

At least 31 states have already passed Bills similar to the PWFA, and the PWFA should not require employers to make significant changes to their existing accommodation processes. Employers should simply ensure they handle requests from employees seeking accommodations due to pregnancy, childbirth, and related medical conditions in largely the same way that they already handle requests from employees seeking accommodations due to disabilities.

That said, the PWFA will certainly make it easier for pregnant and postpartum employees to request reasonable accommodations, so employers should prepare for an uptick in accommodation requests if the PWFA passes. Any uptick in accommodation requests arising out of the PWFA will only add to the ever-increasing accommodation requests that employers are receiving relating to vaccine mandates and other covid-19 issues.