On September 17, the U.S. House of Representatives passed the Pregnant Workers Fairness Act (PWFA) by a bipartisan vote of 329 to 73; however, it has yet to be passed by the U.S. Senate. The PWFA requires employers to make reasonable accommodations to the known limitations related to pregnancy, childbirth and related medical conditions, unless an employer can show that the accommodation imposes an undue hardship upon its business.

Going Above and Beyond the Pregnancy Discrimination Act.

One may ask why this act is needed when the Pregnancy Discrimination Act (PDA) was passed 42 years ago, and the Americans with Disabilities Act (ADA) was passed in 1990. The PDA requires that pregnant women be treated the same as other employees or applicants on the basis of their ability or inability to work; and, under the ADA, a normal pregnancy is not disability. However, the PWFA requires that employers give preferential treatment to pregnant women.

Bill Would Require Reasonable Accommodations Similar to the ADA.

Borrowing heavily from the ADA, the PWFA applies to public and private employers with 15 or more employees, allows recovery of lost pay, compensatory damages and attorneys’ fees and forbids retaliation against a person asserting rights under the act. However, the PWFA goes beyond the ADA ‘s definition of a “qualified employee,” which is one who can perform the essential functions of a job either with or without a reasonable accommodation. The PWFA’s definition of a qualified employee includes one who cannot perform an essential job function for a temporary period, but who can perform it in the near future if the inability can be reasonably accommodated during the interim. The PWFA also prohibits an employer from requiring a qualified employee to take a leave, even a paid one, if another reasonable accommodation can be provided, as a leave can cause the loss of job opportunities and pay.

What Happens Next?

Given the broad support of the PWFA in the House, its approval by the Senate is likely sometime after the November 3rd election. So, now is a good time for employers to review their policies regarding hiring, accommodations, leaves and discrimination; and, Bell Nunnally is a phone call away and can help you with any aspect of this process.