The Pregnant Workers Fairness Act (PWFA) H.R. 2694 passed the U.S. House of Representatives in September by a vote of 329 to 73. At the time of this writing it is uncertain if the Senate, followed by President Trump’s signature, has passed the PWFA into law. Stakeholder and political will, however, suggests that the PWFA will become law; if not during the 116th Congress, then certainly during the next. OHS pros should prepare for change.
Preparing for change
A thorough reading of the House Report on the PWFA1 provides introductory background and federal legislative objectives for this complex topic. The Report is written in language familiar to HR pros. The foundation of the PWFA, however, is based on OHS considerations. OHS pros unfamiliar with pregnancy hazards should prepare by reading Chapter V, Evaluating and Managing The Pregnant Employee, Chapter VI, The Biology of Reproductive and Developmental Hazards, and Chapter X, Occupational Physical Reproductive and Developmental Hazards, that are found in the May 2019 Navy and Marine Corps Public Health Center Technical Manual: Reproductive and Developmental Hazards: A Guide for Occupational Health Professionals2.
The following information highlights key considerations within or impacting the House PWFA Report that may warrant special OHS attention.
Stakeholder and political will
Per the House PWFA Report, the PWFA has high levels of voter support across the political spectrum including Republicans (81%), Independents (86%), and Democrats (96%). House Representatives voting in favor of the PWFA included 226 Democrats and 103 Republicans. Worker advocate and employer interests have aligned to support the PWFA, too.
For example, the U.S. Chamber of Commerce, the leading advocate for mostly conservative interests among private-sector employers, strongly urged House and Senate members to quickly pass the PWFA. See pages 5-7 of House Report for list of more than 200 organizations that endorsed the PWFA. Refer to ISO 45001 Section A.4 Context of the Organization, for how this information is addressed within OHS management systems.
Purpose and application
Per the House Report, the Act ensures that employer nondiscriminatory actions will allow qualified pregnant workers to stay safe and healthy on the job by being provided reasonable accommodations for known limitations of pregnancy, childbirth, or related medical conditions unless those accommodations are an undue burden for the employer.
The PWFA uses ADA “interactive process” terminology, but not specific ADA requirements i.e. pregnancy is not a disability, for establishing reasonable accommodations. The PWFA applies to private and public sector employers with 15 or more employees. Definitions are imperative for proper understanding of the PWFA. Terms such as qualified employee, reasonable accommodations, known limitations and undue burden have a familiar ADA ring to HR pros but may be wholly new to many OHS pros.
Impact on existing laws
Section 7 of the PWFA “makes clear that nothing in the Act limits pregnant workers’ rights under a federal, State, or local law that provides greater or equal protection.” Employers with operations in the 30 states, the District of Columbia, and 4 cities that have established PWFA-like laws since 2012, must determine which law is most applicable. Federal or State OSHA standards and guidelines, such as HazCom reproductive hazards may come into play.
Worker’s representative?
Under the PWFA, a “known limitation” is a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee has communicated to the employer that, in turn, allows the worker to communicate her need for a reasonable accommodation.
Page 26 of the House Report includes an interesting possibility. As stated in the Report, “However, this provision is broad and recognizes that there may be times when a worker’s representative may communicate this request on her behalf.” What possibilities do you envision with this condition?
Qualification standard?
Page 55 of the House Report contains a particularly troublesome paragraph. The paragraph is shown in its entirety below, but without reference/citation numbers, to ensure there is no misunderstanding of the information provided:
In addition, the ADA includes a defense the employer can raise if the employer has a ‘‘qualification standard’’ that includes a ‘‘requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.’’ The Supreme Court has ruled that this includes a direct threat that may be posed to the individual’s own health or safety.
The Occupational Safety and Health Administration has noted that ‘‘exposure to reproductive hazards in the workplace is an increasing health concern.’’ Under H.R. 2694, if the workplace environment — such as exposure to chemical, physical, or biological hazards — poses a threat to the health or safety of the pregnant employee, the employer will be able to take into account such threats to health or safety in determining a reasonable accommodation, including through the interactive process with the employee.
The above may be an OHS pro’s greatest challenge. Historically, employers have used qualification standards to remove the pregnant worker from her normally assigned work. Current research shows, however, when this is done, worker advancement and retention suffer.
OHS risk must be viewed in its larger context as described in ISO 31000 Risk Management – Guidelines. Within ISO 31000, risk is defined as “effect of uncertainty on objectives.” Does the work organization seek to recruit, retain, and promote women? The House PWFA Report states that “Seventy-five percent of working women will become pregnant while employed at some time in their lives.”
Conclusion
The U.S. House passed the PWFA by a vote of 329 to 73. Most votes against the PWFA came because the Act omits protections for religious organizations. Solve that argument and near unanimous approval was possible. Remarkable achievement. The PWFA, however, needs strong OHS support and action to obtain remarkable health and safety achievements for workers and their future children.
References
116th Congress U.S. House of Representatives Report 116-494: Pregnant Workers Fairness Act https://www.congress.gov/116/crpt/hrpt494/CRPT-116hrpt494.pdf
Navy and Marine Corps Public Health Center Technical Manual: Reproductive and Developmental Hazards: A Guide for Occupational Health Professionals, May 2019, https://www.med.navy.mil/sites/nmcphc/Documents/oem/NMCPHC_TM-6260.01D_(May2019)_ReproductiveAndDevelopmentalHazards.pdf
