The Pregnant Workers Fairness Act (PWFA, H.R. 1065/S. 1486), which passed the House of Representatives in May 2021 with a vote of 315-101 and out of the Senate HELP Committee in September with a strong bipartisan vote of 19-2, is the product of extensive negotiations between advocates for previous versions of the bill and the U.S. Chamber of Commerce. The bill would provide pregnant employees with critical workplace protections while also making sure employers have the flexibility and clarity on how to provide those workers with the maximum opportunity to remain in their workplaces.
- The PWFA Relies on Familiar Processes from the Americans with Disabilities Act. PWFA uses the interactive process from the Americans with Disabilities Act (ADA) for determining what accommodation is appropriate when a pregnant employee is limited in the performance of her essential functions.
- The Employee Must Inform the Employer When She needs an Accommodation. The employer’s obligation to engage in the interactive process is triggered when the employee, or her representative, informs the employer that because she is pregnant, she is unable to perform all the essential functions of her job and needs an accommodation. This definition of a "known limitation" ensures employers are properly on notice that an accommodation is needed and the specific nature of the accommodation.
- The Employee Must Be Qualified for Any Other Position to Which She is Assigned. If reassigning the employee is the agreed upon accommodation, the employee must be "qualified" to perform that new role. A "qualified employee" is defined in the same way as under the ADA.
- The Limitation on Performing an Essential Function Must be Temporary. The PWFA specifies that the inability to perform an essential function must be temporary in nature.
- Employers with Less Than 15 Employees are Not Covered. The bill carries forward the exemption in the ADA for employers with less than 15 employees.
- Leave Is Allowed as An Accommodation, but Only as A Last Resort. If, after engaging in the interactive process with the employee, no other accommodation can be found, the employer can have the employee take leave as a way of accommodating her known limitation.
- Employer Penalties are Subject to a Good Faith Defense. If the employer can demonstrate that it acted in good faith during the interactive process in trying to accommodate the employee, the penalties will be limited.
The Pregnant Workers Fairness Act is a reminder that through good-faith negotiations, legislative solutions to important questions and problems can be found. The U.S. Chamber urges co-sponsorship, as that will be taken into account for the annual How They Voted scorecard. Additionally, the U.S. Chamber urges an "aye" vote on the legislation when it comes before the full Senate for a vote, as we will be Key Voting the bill.
Please contact Hunter Thompson (Hunter_Thompson@cassidy.senate.gov) with Senator Cassidy to join.
