The Pregnant Workers Fairness Act (H.R. 1065, February 2021) is being fast-tracked into federal law. The bill has wide bipartisan support. President Biden campaigned on the law’s passage. June 2021 is a reasonable timeframe for the law’s enactment. When properly understood, this law will help transform how OHS is practiced in the United States.
A PWFA bill first appeared in 2012 and has inched closer to passage each following year. The PWFA passed the U.S. House by a vote of 329-73 in September 2020. The Senate, bogged down by historical events in late-2020, could not find time for a vote. The Senate should have time to act this year.
The necessity for PWFA law is found in its title. Fairness requires a comparison. With this in mind, the seeds for PWFA may have been planted in 1992 when the European Commission issued its Pregnant Workers Directive that encouraged improvements in the “safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding.” Every country in the EU now has law that conforms to the Directive.
Young v. UPS
Do U.S. workers want improvements with safety and health when pregnant? This question may be answered by findings in the 2015 U.S. Supreme Court case, Peggy Young v United Parcel Service. Peggy sought a lifting restriction during her pregnancy to help prevent a miscarriage, which she suffered during a prior pregnancy. UPS denied Peggy’s request. The court ruled 6 to 3 in Peggy’s favor. UPS violated the 1978 Pregnancy Discrimination Act and Peggy should have been granted her request for a reasonable accommodation.
Justice Kennedy, speaking for the dissent in Young, summarized the principles of the case: “But as a matter of societal concern, indifference is quite another matter. There must be little doubt that women who are in the workforce – by choice, by financial necessity, or both – confront a serious disadvantage after becoming pregnant. They may find it difficult to continue to work, at least in their regular assignment, while still taking necessary steps to avoid risks to their health and the health of their future children. This is why the difficulties pregnant women face in the workplace are and do remain an issue of national importance.”
Justice Kennedy summarized what U.S. pregnant workers want. Pregnant workers are tired of indifference and they may need help “taking necessary steps to avoid risks to their health and the health of their future children.”
Steps to avoid risks
The following are nearly word-for-word quotes from the European Commission’s 1992 Pregnant Workers Directive (1):
The objective of the Directive is to protect the health and safety of women in the workplace when pregnant or after they have recently given birth and women who are breastfeeding. The Directive includes guidelines that detail the assessment of the chemical, physical, and biological agents and industrial processes considered dangerous for the health and safety of pregnant women or women who have just given birth and are breastfeeding. The Directive includes provisions for physical movements and postures, mental and physical fatigue, and other types of physical and mental stress. Pregnant and breastfeeding workers may under no circumstances be obliged to perform duties for which the assessment has revealed a risk of exposure to agents, which would jeopardize their safety or health. Employers or the health service will use these guidelines as a basis for a risk evaluation for all activities that pregnant or breastfeeding workers may undergo and must decide what measures should be taken to avoid these risks. Workers should be notified of the results and of measures to be taken which can be adjustment of working conditions, transfer to another job or granting of leave.
Highpoints PWFA H.R. 1065
H.R. 1065 makes it an unlawful practice for covered employers to fail to provide reasonable accommodations for workers with known limitations related to pregnancy, childbirth, or related medical conditions – unless the accommodation would cause the employer an undue hardship. The law is triggered when a pregnant worker requests a reasonable accommodation. Good faith negotiation between the worker and employer establishes the accommodations.
Reasonable accommodations may include making existing facilities used by employees readily accessible; job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustment or modifications of examinations; training materials or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.
The above two paragraphs are nearly word-for-word explanations of H.R. 1065 as provided by the U.S. House Committee on Education and Labor. The words and terms being used above are nearly identical to language found within the Pregnancy Discrimination Act (PDA) and Americans with Disabilities Act Amendment Act (ADAAA).
Compare the highpoints of both the EC’s Pregnant Workers Directive and the U.S.’s Pregnant Workers Fairness Act, H.R. 1062. Which of these two best helps a pregnant worker take necessary steps to avoid risks to their health and the health of their future children? Although both pieces of legislation should be read in their entirety, a clear winner should be evident.
What did OSHA do in 2012 that should be part of this discussion? OSHA revised its HazCom standard to include for the first time the mandatory hazard statements “may damage the unborn child” and “may cause harm to breastfed children.” These terms originated in Europe and aligned with concepts within the EC’s 1992 Pregnant Workers Directive. Is there a coincidence that the push for the U.S.’s PWFA began in 2012 when OSHA revised its HazCom standard?
Better the devil you know
Pregnant workers will face some hazard at every workplace. If OSHA cannot pass an ergonomics standard, what chance would the agency have of passing a Pregnant Workers Standard with requirements similar to provisions found within the EC’s Pregnant Workers Directive?
Passing legislation in the U.S. is often a strategic and delicate game. Familiarity sells better than new and bold. If the legislative objective is to help pregnant workers take necessary steps to avoid risks to their health and the health of their future children, perhaps the best way to obtain the necessary votes is to package the concepts within a Trojan Horse composed of familiar terms found within existing PDA, ADA, and similar laws.
Passing the PWFA into law is not the end game. How risk to pregnant workers will be decided and accommodated, particularly who performs major roles, will help transform how OHS is practiced in the United States.