The protections would apply to applicants and employees who can still perform essential job functions with certain exceptions.
On September 17, the House approved the Pregnant Workers Fairness Act, which would require employers to accommodate applicants and employees affected by pregnancy, childbirth, or related medical conditions. The bill, H.R. 2694, cleared the House by a vote of 329-73.
Representative Virginia Foxx (R-N.C.) expressed some of the resistance to the bipartisan bill on the GOP side: “Unfortunately, despite the necessary improvements made to the original bill, an important issue remains unresolved. Namely, the legislation . . . does not currently include a longstanding provision from the Civil Rights Act that protects religious organizations from being forced to make employment decisions that conflict with their faith.”
Pregnant Workers Fairness Act. Under H.R. 2694, it would be an unlawful employment practice for a covered entity to:
- Not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business;
- Require a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process (as in the ADA);
- Deny employment opportunities to a qualified employee if the denial is based on the cover entity’s need to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee;
- Require a qualified employee to take leave, paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee; or
- Take adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.
The legislation would also prohibit retaliation and coercion.
Known limitations. Notably, the term “known limitation” means a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer, whether ornot such condition meets the definition of disability specified in section 3 of the ADA (42 U.S.C. 12102).
Qualified employee. A “qualified employee” under H.R. 2694 is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the job, except that an employee or applicant will be qualifiedif:
- Any inability to perform an essential function is for a temporary period;
- The essential function could be performed in the near future; and
- The inability to perform the essential function can be reasonably accommodated.
Covered employers. The legislation would apply to, among others, employers with 15 or more employees; congressional employing offices; and entities employing state employees.
“Current federal law does not clearly guarantee pregnant workers’ right to reasonable accommodations in the workplace—such as water, seating, bathroom breaks, and lifting restrictions,” Representative Bobby Scott (D-Va.) said in support of the H.R. 2694. “These basic protections are critical to protecting pregnant workers from the tragic consequences of unsafe working conditions, and they are particularly important today, as early evidence suggests that pregnancy leads to an elevated risk of severe illness from COVID-19.”
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