After repeated introductions over the course of several years in both the U.S. House of Representatives and the Senate, on September 14, 2020, the House passed HR 2694, the Pregnant Workers Fairness Act (“PWFA”). The stated purpose of the legislation is to “eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.” If passed by the Senate and signed into law, the Act would clarify employer obligations set forth in the 2015 United States Supreme Court decision in Young v. UPS and subsequent Equal Employment Opportunity Commission (“EEOC”) guidance.

The PWFA

The PWFA largely tracks the accommodation requirements under the Americans with Disabilities Act (“ADA”). Like the ADA, employers with 15 or more employees must provide reasonable accommodations to qualified employees unless the employer can show that such an accommodation “would impose an undue hardship.” The legislation defines the term “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—

1. any inability to perform an essential function is for a temporary period;

2. the essential function could be performed in the near future; and

3. the inability to perform the essential function can be reasonably accommodated.”

Examples of a pregnancy-related reasonable accommodation include additional breaks to drink water, a stool to rest upon, limiting heavy lifting, and temporary reassignment to different work. Also like the ADA, the PFWA requires that employers engage in an “interactive process” to determine the efficacy and feasibility of a requested accommodation.

Under the PWFA, it would be unlawful for an employer to deny reasonable accommodations to a qualified employee for the “known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee.” The PWFA prohibits employers from requiring a qualified employee to (i) take paid or unpaid leave if a non-leave reasonable accommodation can be provided, or to (ii) accept an accommodation that is not “reasonable.” The PWFA would also make it unlawful for employers to take an adverse employment action against a qualified employee who requests or uses a reasonable accommodation related to pregnancy, childbirth or a related medical condition, or to deny “employment opportunities” to a qualified employee because of her need for a pregnancy-related accommodation.

As with the ADA and other anti-discrimination statutes, the PWFA would also prohibit retaliation against any employees who seek pregnancy or pregnancy-related accommodations or engage in protected activity related to the PWFA. Likewise, the anti-retaliation provision protects any employee who has filed a charge or assisted or participated in an investigation or proceeding under the PWFA. The PWFA, however, provides an affirmative defense to employers who have made “good faith efforts” to engage in the interactive process with an employee who seeks reasonable accommodations under the PWFA.

The EEOC would be the administrative agency tasked with enforcement of the PWFA. The EEOC would also be responsible for issuing PWFA regulations within two years of enactment of the proposed law. The rights and remedies afforded by the PWFA explicitly track those provided under Title VII of the 1964 Civil Rights Act (“Title VII”), including compensatory and punitive damages and attorneys’ fees. If enacted, as currently drafted, the PWFA would become effective upon enactment.

Young v. UPS and Subsequent EEOC Guidance

The PWFA seeks to address some of the questions arising out of the Supreme Court’s decision in Young v. UPS, 135 S. Ct. 1338 (2015) (“Young”) and to clarify employer obligations to pregnant workers. In Young, the Court narrowly interpreted the Pregnancy Discrimination Act (“PDA”), which added language to Title VII to provide that sex-based discrimination includes discrimination on the basis of pregnancy. The Court held that employers that provide accommodations to workers who are “similar in their ability or inability to work” need not give pregnant workers preferential treatment, but also may not deny accommodations to pregnant workers because such an accommodation would be more costly or less convenient than accommodations provided to other, similarly-situated workers. Young was intended to provide clarity to employers regarding their obligations under the PDA to accommodate pregnant workers. The decision, however, arguably created more uncertainty for employers.

In response to the Young decision, the EEOC issued guidance regarding the accommodation of pregnant workers. As the guidance explains, pregnancy is not in and of itself a disability under the ADA, although a condition arising from pregnancy or childbirth may be a temporary disability covered by the ADA. Further, the guidance provides that an employer may be required to accommodate certain employees who are pregnant or have a related condition (even absent a disability) under the PDA or under some states’ accommodation laws.

The Young decision and the EEOC guidance have, however, left a gap in the understanding of employers’ obligations to pregnant workers who do not have a demonstrable pregnancy-related disability, but who do need a form of accommodation merely as a result of their pregnancy. The PWFA seeks to bridge that gap by providing clear directives regarding the steps that employers must take when a qualified employee who is pregnant requests an accommodation during a pregnancy, that does not otherwise cause an ADA-covered impairment.

What This Means for Employers

At this time, it is unclear whether the Senate will pass the PWFA. In the event that the PWFA is enacted, employers will need to review and update their workplace policies and procedures to ensure compliance with the new law. Because the PWFA largely tracks the ADA, employers should already be familiar with the requirements to engage in the “interactive process” and to determine the reasonable accommodations that will suit a pregnant employee’s needs, while avoiding undue hardship to the employer.  Employers should also ensure that they are complying with any applicable state and local obligations concerning pregnancy accommodation. For example, both New York State and New York City have pregnancy accommodation laws.