February 11, 2020

Pregnancy: The New Preferred Protected Class?

I wonder what Elizabeth would say about H.R. 2694, the Pregnant Workers Fairness Act. Elizabeth Hazelwood sued her employer for failing to provide her with a reasonable accommodation in violation of the Americans with Disabilities Act (ADA). She is deaf and requested an interpreter.  Instead, her employer had her co-workers and supervisors relay, on her behalf, critical test results to requesting physicians. Hazelwood conceded the accommodation allowed her to fulfill her job duties. The court found in the employer’s favor. The court reminded us that under the ADA, “Employers are not required to provide an accommodation that the employee prefers—all that is required is that the employer provide an effective accommodation.”

But H.R. 2694 proposes employers should do just that. The bill would make it unlawful for an employer to: (1) “require a job applicant or employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that such applicant or employee chooses not to accept, if such accommodation is unnecessary to enable the applicant or employee to perform her job” and (2) require an employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of an employee.”

Take the case of a pregnant employee who works night shift. Her doctor recommends she work another shift, day or evening, during her pregnancy due to disruption to her sleep patterns. You offer her an evening shift position.  She wants day shift (so does every other employee). You offer her paid or unpaid leave if she does not want evening shift. She declines that, too.

As proposed, the bill might require you to give her day shift and face complaints and grievances from coworkers who want that spot.  Her first argument is that the evening shift is “unnecessary” to enable her to perform her job since she can work day shift. Her second argument is you cannot require her to take leave because another reasonable accommodation is available.

The ADA requires a covered employer to provide a qualified individual with a disability a reasonable accommodation, even if it is not the accommodation the individual prefers. H.R. 2694 proposes to elevate the duty to accommodate pregnant individuals above those with disabilities.

This might be an unintended consequence of this legislation. The bill currently has 211 cosponsors. If this concerns you, contact your Congressional Representative and talk about the adverse impact the bill might have to employee relations. If you support the bill, share that too! It’s about shaping public policy before it becomes law.