Wednesday, April 6, 2016

Ohio introduces unnecessary pregnancy legislation

Last week, the Pregnancy Reasonable Accommodation Act (S.B. 301) [pdf] was introduced in the Ohio Senate. The bill seeks to raise pregnancy to the level of a protected disability.

Indeed, S.B. 301 mirrors the ADA in many ways. It:

  • Would require 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.
But, this bill goes significantly further 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.

Yet, it’s unacceptable in a more global way. It’s simply unnecessary. Here is what I wrote when Congress introduced similar legislation on the federal level:
The Pregnancy Discrimination Act requires 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 requires 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. 
Have you ever offered light duty to an employee returning from an injury? Have you ever reassigned job functions to assist an injured worker? Unless you are among the tiniest minority of employers that provides no accommodations for any employees’ medical issues or injuries, then the PDA already requires you to accommodate your employees’ pregnancies. 
We do not need legislation to require an employer to make a reasonable accommodation for pregnancy, childbirth, and related medical conditions. The PDA already implicitly allows for these accommodations. I’m not taking a stand against the rights of pregnant women (which I support). I am, however, taking a stand against duplicative legislation, regardless of the soundness of the policy or the worthiness of the beneficiary.
In Ohio’s currently Republican-controlled legislative climate, I would ordinarily tell you that employers need not worry about a piece of employee-rights legislation. But, S.B. 301 is different. It enjoys broad bi-partisan support—sponsorship by Ds and Rs, faith leaders, small business owners, and doctors. Thus, this bill has a real chance at becoming law. And while most of S.B. 301 would not change much from the current state of law, if you are concerned about the possibility of pregnant workers being able to strong arm you into providing the accommodation of their choice, you should call or write your legislators and make your opinion heard.