The Pregnancy Reasonable Accommodation Act (Senate Bill 301) seeks to raise pregnancy to the level of a protected disability. Indeed, S.B. 301 mirrors the ADA in many ways. It:
• Requires employers to provide reasonable accommodations to pregnant workers.
• Defines “reasonable accommodation” to include more frequent or longer breaks, acquisition or modification of equipment, seating, or uniforms, assistance with manual labor, light duty, modified employment schedules, job restructuring, temporary transfer to a less strenuous or hazardous position, break time and a private, non‐bathroom space to express breast milk, and time off to recover from childbirth.
• Offers a defense for undue hardship.
• Mandates an interactive process to determine an appropriate accommodation.
• Protects the seniority of non‐pregnant employees.
• Does not require an employer to create a position as a reasonable accommodation.
This bill goes significantly further, however, by stating that a pregnant worker does not have to “accept an accommodation that the employee chooses not to accept.” In other words, where the ADA merely requires that an employer offer a “reasonable” accommodation, this bill would require an employer to offer the employee’s choice of accommodation. In this regard, S.B. 301 is unacceptable. No matter the condition, no employee should ever have the right to force a preferred accommodation on an employer if the employer can otherwise accommodate that condition.
Yet, it’s unacceptable in a more global way. It’s simply unnecessary. State and federal pregnancy discrimination laws already require employers to treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. In other words, the law already mandates that employers provide the same accommodations for an expectant worker that you do for any un‐pregnant employee unable to perform his or her regular job duties.
Jon Hyman is a partner in the Labor & Employment group at Meyers, Roman, Friedberg & Lewis. He is also the author of the Ohio Employer’s Law Blog, which the ABA Journal recently named to its legal blog Hall of Fame.