Transcripts For CSPAN3 Hearing On Pregnant Worker Rights 20240713

The committee on education and labor it will come to order. Well come, i know that and decorum is present. I know we are meeting today to hear testimony on age our 260 94, pregnant workers farm and act. I note, for the subcommittee, that mr. Mcbath and, mr. Cohen of tennessee are permitted to participate in todays hearing. Members who sit on the subcommittee and our president should have a force priority to, followed by members that only after all Committee Members can ask questions. Pursuant to Committee Rule seven, Opening Statements are limited to the chair and Ranking Member, this allows us to hear from our witnesses sooner and provide for all members of adequate it time to ask questions. I recognize myself for the purpose of making an opening statement. As a mom and a policy maker, i know how important it is to protect the Economic Security of pregnant women and working families. Unfortunately, our current laws are inadequate and many pregnant workers are placed on unpaid leave or forced out of work when they only need simple accommodations to stay on their job. Today, we are holding a hearing on hr 294, the pregnant workers fairness act. This guarantees that pregnant we will get reasonable accommodation to allow them to stay in the workplace. I would like to thank our panel. Also wondering Judiciary Committee chairman jerry nadler, the lead sponsor of this bill for taking time to join us. According to a better balance, 70 of women will be pregnant while employed. Women are in increasingly either the primary or cope red winners of many houses, and as a result, many work later into their pregnancies. In fact, Research Suggests that more than 80 of firsttime mothers work until their final month of pregnancy, i know i did. Pregnant workers meeting reasonable accommodation to protect the health of both mother and babies. This can range from providing seeding, water and light to do the two excusing pregnant workers from tasks involving dangerous substances. They did not need to be, nor are they typically complicated or costly. But when pregnant workers do not have access to the reasonable Workplace Accommodations they need, they are often forced to choose between their Financial Security and their pregnancy. The consequences can be devastating to their health and security. It is also important to note that women of color are overrepresented in low wage, physically demanding jobs and are therefore disproportionately affected by a lack of access to reasonable accommodation. In 1978, Congress First recognize the responsibility to provide pregnant women with fair and equal treatment in the workplace. When they pass the pregnancy discrimination act. The law clarified that discrimination against pregnant workers is discrimination on the basis of sex, under title seven. Of the Civil Rights Act of 1964. This also requires businesses to treat pregnant workers as they would other physically impaired workers. 41 years after the passage of this act, federal law still falls short in guaranteeing that all pregnant workers have reasonable accommodations. Under current law, a pregnant worker must show that her employer accommodated similarly situated coworkers, a burdensome and often impossible standard to meet. Similarly, the americans with disabilities act covers pregnancy related impairment, but leaves women with less serious pregnancy related impairments, or simply need accommodation, without legal recourse. Even the Supreme Court decision and young versus ups, which affirmed pregnant workers rights under the pregnancy discrimination act as not provided workers or businesses the clarity or Legal Certainty they need. In fact, since young worse ups, 70 of courts have denied reasonable accommodations for pregnant workers. Pregnant women continue to suffer Workplace Discrimination at an alarming rate. According to a 2012 survey, 60 of workers have seen pregnancy discrimination on the job. For these women, being pregnant can be losing a job, being denied a promotion, or not being hired in the first place. Guaranteeing that pregnant workers have a reasonable accommodation in the workplace is a crucial step to eradicating pregnancy discrimination. Without for federal protection, several states from across the geographical spectrum have taken action to fill the void. My home state of oregon is leading the way. The state Legislature Passed a bipartisan bill to provide reasonable accommodation to act begins with no limitations related to pregnancy, childbirth or related medical condition, unless it imposed undue hardship. 27 states in the district of columbia and four cities at required employers with more than 15 employers to provide accommodations, bringing certainty to business, preventing policy disputes in keeping pregnant women safely on the job. Without a federal benchmark, we are left with a patchwork of laws that provide strong protections for some and no protections for others. We need to make sure that all pregnant workers, regardless of where they left can access the protections they need to stay in the workplace. That is why we are discussing the pregnant workers fairness act today. This bipartisan bill would establish pregnant workers rights to reasonable accommodations and guarantee pregnant workers can seek those accommodations without facing discrimination in the workplace. The fairness act allows them to take an important step towards workplace it under a quincy and the Economic Security of all pregnant and parenting women and their families. I welcome this opportunity to work with my republican colleagues to move this forward in a bipartisan manner. I request unanimous consent to enter two letters and you can send, another one from more than 100 groups in support of the pregnant workers fairness act. Without objection . I now recognize the member for an opening statement. Thank you madam chairman, and i welcome all the witnesses here today, including my friend, to many republicans have been committed to policies and law that empower all americans who achieved success. Discrimination of any kind of should not be tolerated, and no one should ever be denied an opportunity because unlawful discrimination. That is why there are important protections under federal law to prevent Workplace Discrimination, including federal laws that protect pregnant workers. The americans with disabilities act outlaws pregnancy discrimination. Employers must treat pregnant workers equally and fairly, and pass laws protecting foreign workers. The equal employment commission, primary federal agency that enforces civil rights laws against Workplace Discrimination has stated that 88 requires pregnancy related accommodations. We have long supported accommodations for pregnant workers to ensure that they are not being discriminated against. We should promote policies in washington that allow families to flourish and protect life at all stages. The purpose is to give all americans equal opportunities to succeed, that means overzealous government often causes more harm than good. We should examine legislation that could cause confusion and prove difficult to implement. Our nations workers and job creators can flourish, and american workplaces can be free from discrimination. The committee should review and evaluate the federal laws already on the books that provide protection for pregnant workers, as well as the specific provisions of hr 2694 four advancing legislation that could have unexpected consequences. The hearing today is a starting point in this regard. The bottom line. Pregnant workers should be protected and recently accommodated in the walk workplace. I look forward to hearing from our witnesses today. Madam chair, i yield back. Without objection, all other members who wish to enter renters written statements into the record may do so by submitting them to the committee electronically in microsoft word format by 5 pm on november 4th, 2019. I now introduce our witness for the first panel. Congressman jerry nadler represent new yorks tenth congressional district, congressman out there is the chairman of the House Committee on the judiciary for. More than 30 years, german adler has been on the front lines in the fight for civil rights, and he has been a relentless defender of our countrys fundamental promise of equality for all. Congressman nadler has played a significant role in the fight for womens rights, serving as a central figure and the reauthorization of the violence against women act, and he is the author of the pregnant workers fairness act. We appreciate the witness from being here today, i look forward to your testimony. Let me remind the witness that we read your wind statement and it will appear at the record, youre asked to limit your oral presentation to a five minute summary of your written statement. Before he began, please remember to press that but not a microphone. We know you know this, and as you can to speak the light in front of you will turn green and after four minutes it will be yellow to signal you have one minute remaining. When it turns read your five minutes have expired. I now recognize chairman jerry nadler for your testimony. Thank you for holding his hearing today and inviting me to testify about my bill, the pregnant workers fairness act. This hearing is long overdue. Pregnancy discrimination is not a new issue. For as long as women have been in the workforce they had been fired, passed over for promotion or hiring, had worked cut back or forced out on leave when they became pregnant or started a family. In the last six months we have seen multiple reports about workers forced off the job who are pregnant because they needed a simple fix to keep working. Pregnancy is not a disability. Sometimes due to complications even healthy pregnancies, workers need reasonable accommodation such as a stool, an extra bathroom break, limiting contact with certain chemicals or reducing the amount of lifting they do. These accommodations are short in duration and typically cost very little to provide. For millions of pregnant workers, they are critical. Simple accommodation to mean the difference between staying on the job or being forced on leave. The difference between keeping Health Insurance and paycheck or putting pregnancy at risk. Congress passed the pregnancy disc nation act in an effort to stop employers from treating pregnant employees this way. Prohibited discrimination on the basis of pregnancy, childbirth or related conditions. Courts have interpreted the law to mean if you treat your nonpregnant employees well you have to treat your pregnant employees well. The inverse is also true. If you treat your nonpregnant employees terribly you have every right to treat your pregnant employees terribly. In 2000 the Supreme Court attended to address how the pregnancy disability act discrimination act interacted with the need for pregnancy accommodations in the workplace. The courts decision exacerbated the problem. The court found in order to receive an accommodation pregnant worker has to prove that her employer accommodated nonpregnant employees with similar tissue are similar in their ability to work. It requires pregnant workers to detailed knowledge of the medical and employment history of every other employee. Women must prove their needs for accommodation is just as valid as their male counterpart who had a hernia for example. For most workers, especially lowwage workers, there is no way to get that information and prove their case. Recent report from better balance found two thirds of pregnancy accommodation cases the burden the decision places is for most pregnant women insurmountable. Congress introduced legislation to address pregnancy accommodation including a bill introduced last week by my republican colleagues. This new legislation appears to be based on the young test and requires employers provide accommodation for some of their nonpregnant employees they must do so for pregnant employees and similar working conditions. Im happy to see this additional interest in ensuring pregnant workers have the accommodations they need to stay on the job at the problem with young and therefore the problem with mr. Wahlberg and ms. Wagners proposal is that they require pregnant workers to prove they have been discriminated against in order to access accommodations. It does not have to be that complicated. That is why i introduced the bipartisan pregnant workers fairness act. The bill creates an affirmative right to an accommodation, rather than relying on a model of discrimination. Using the language of the ada it requires employers to provide reasonable accommodations to pregnant workers as long as the accommodation is not imposed an undue hardship on the employer. Those accommodations would be available for pregnancy, childbirth or related conditions including lactation. Courts know exactly how to interpret the language. Employers similarly have worked within adas requirements for decades and know exactly what their responsibilities will be. Must importantly, women will have the certainty they can safely stay on the job as long as they choose as we know that this framework for pregnancy accommodation works because weve seen it in action. 27 states around the country have passed pregnancy accommodation laws similar to the pregnant workers fairness act. State like new york, nebraska, washington state. South carolina and kentucky have passed legislation to provide reasonable accommodation in a bipartisan manner. The bill has over 100 bipartisan cosponsors and is supported by a broad range of health, labor, business and Womens Health rights organizations. I look forward to continuing to work with you and this committee to move this critical piece of legislation forward. Thank you chairman nadler. Thank you for taking time to testify before the committee today. Your testimony is a valuable piece of legislative record. We will now see the second panel. Thank you. Thank you to the witnesses and the Committee Staff for that smooth transition. I will introduce our witnesses for the second panel. Ms. Kimberly Michele Durham is from alabama. Ms. Durham made the trip to washington dc to share her story. Formerly an emergency medical technician in alabama, ms. Durham was forced off the job when she became pregnant. Next, ms. Iris wilbur, joined Greater Louisville inc. The Metro Chamber of commerce in two thousand 16. She serves as Vice President of Government Affairs and public policy. She works on policy and legislation at the local, state and federal levels to help advocate for the regions business community. Ms. Ellen look locklin Ellen Mclaughlin is engaged in a broadbased Employment Law practice, specializing in federal and state court and Administrative Agency employment litigation. Ms. Dena is head of a better balance, a leading National Advocacy organization headquartered in new york city. A better balance is dedicated to advancing the rights of working families, promoting fairness in the workplace and helping workers across the economic Spectrum Care for themselves and their families without risking Economic Security. We appreciate all of the witnesses for being here today and we look forward to your testimony. Let me remind the witnesses that we have read your written statements and they will appear in fall in hearing record. Pursuant to Committee Rule seven and Committee Practice, each of you is asked to limit your oral presentation to a five minute summary of your written testimony. Let me remind the witnesses that pursuant to title 18 of the u. S. Code section 1001, it is illegal to knowingly, willfully, falsify any statement, representation, writing, document or material fact presented to congress or otherwise conceal or cover up a material fact. Before you begin testimony please remember to press the button on the microphone in front of you so it will turn on and members can hear you. As you begin to speak, the light in front of you will turn green. After four minutes the light will turn yellow to signal you have one minute remaining and when the light turns red youre five minutes have expired and we ask that you wrap up your testimony. We will let the entire panel make their presentations for we move to member questions. When answering a question please remember to turn your microphone on. I will first recognize ms. Durham. Welcome to the committee. You are recognized for five minutes for your testimony. Ms. Durham my name is Michele Durham and im a mom from alabama. I want to thank congresswoman bonamici, congressman, and subCommittee Members for having here today. Yes today was the first time ive ever been on a plane. It was a little scary but i was glad to make the trip. I want you to know they say pregnancy is supposed to be a time of happiness but my pregnancy was filled with fear and anxiety because my employer sent me home without pay right when i needed a paycheck the most. Thats not the way things should be. In march 2015, when i was 22, i began working for rural metro corporation. I was an emergency medical technician. My first job after getting my certificate and i was excited to work. My plan was to gain experience and save up so i could continue my training and eventually become a paramedic. About six month after i started working for rural metro i learned i was pregnant with my first child. During one of my first prenatal appointment i was told i should not lift anything over 50 pounds, a standard across the board. Because my job requires me to lift patients and stretchers which weighed 100 pounds without a patient on them, i knew i would have to ask rural metro to reassign me temporarily so i could follow my Health Care Providers orders. I did not think it was a problem because i knew rural metro had a policy of getting light duty jobs to emts when they have problems like a back injury. I knew they had dispatcher Jobs Available that would not involve lifting. But i was wrong. My manager told me the company only gave light duty jobs to emts who injured while working he told me my only option was to take an unpaid leave of medical absence unpaid leave of absence. The Hr Department told me i had to go home. I was shocked. I wanted to work. I love my job. I wanted to be an emt and i needed my paycheck. All i could think about was how i was supposed to live for six months without income of any sort. How was i supposed to prepare for my son to come home . I was afraid for him and for me. I realized i needed help and i called a lawyer in birmingham, heather leonard. She contacted the company and told them what they were doing was illegal and that a recent Supreme Court decision was on my side. Rural metro never responded to her. We went to the eeoc and then the court. My experience in the court system has been tough. The judge ruled against me and my cases on appeal. I got the aclu helping me im grateful for them. The truth is i did not want to go to court, i just wanted to keep working. After rural metro forced me to take leave in september of 2015, i was unemployed for about seven months. I look really hard for a job and could not find one. I couldnt pay my rent. I had to move back home with family. I was excited about meeting my new baby but his birth was terrifying. I was worried about how i would provide for him. I racked up a lot of credit card debt. I still have a hospital bill from when i gave birth to him in march of 2016 because i did not have health coverage. I eventually found a job in a factory that it did not come with overtime or benefits like my rural metro job did and i later had to take a second job at a Fast Food Restaurant to help pay bills. Recently i had to change jobs again and im now a manager at a pet store. I still dont have Health Insurance and my son is on medicaid. My son is three and he is my greatest joy and i would not trade being his mom for anything. But i will never get back those months before he was born and after when all i could think about was what i was losing while i was pregnant. The worry and the fear. I hope that Congress Passes the pregnant workers fairness act because what happened to me was wrong. Women and families need a law that tell their employer they have to explore different options but will help pregnant workers keep their jobs. Employers should not be able to just say no when a pregnant worker asked for a temporary change. They should have the right to work it out. Please, use your power to help pregnant workers take care of themselves, their babies and their families. I want to thank you for listening to my story today. Thank you for your testimony and making your first trip here. We are glad you did. I recognize ms. Wilber for five minutes for your testimony. Good morning. I represent Greater Louisville inc and the chamber of commerce. Thank you for the opportunity to explain why gli strongly supports this act. We live in a world where businesses need every person that can work participating in the labor force. 1700 companies our group represents, we must do what is necessary to attract and retain employees, working around personal situations like pregnancies. This is true for the 58 of women in kentucky who are of childbearing age. In kentucky, health care is a major industry. It is a female dominated sector. We want to retain women workers and keep them healthy and advancing in their careers. Over the last year, gli worked with membership and helped pass kentucky legislation called the pregnant workers act, a law designed to prevent discrimination. What we discovered among membership was most Large Company departments have resources to stay current on changes in law but many small to Midsize Companies were forced to navigate complex circumstances like pregnancy and medical conditions without the aid of a robust Hr Department or inhouse counsel. We saw the opportunity for solution and prevent problems before they start and found the proposal to be a strong probusiness bill that will have a strong impact on kentuckys economy. The fairness act implies employers unless it constitutes undue hardship for the employer. The kentucky law provides businesses with guidance about when an employer is and is not obligated to provide services. Our bill earned endorsements from the kentucky chapters of march of dimes, united way, fraternal order of police and Nurses Association but also passed with overwhelming bipartisan support in the General Assembly with 80 of legislators voting yes and signed into law. It was championed by republican senators with bipartisan cosponsors. We passed the law in kentucky but we still need the federal. The ability to have uniformity related to accommodations throughout the country is important. We urge congress to take action. Like the kentucky law, the much needed clarity outlined in the pwfa will increase potential to resolve reasonable requests quickly and informally and reduce costly litigation. We believe it will lead to reduction for this reason. At least two states with these laws have reported reduction of litigation since the laws went into effect. A consistent legal landscape means a business friendly environment. Before the kentucky law was enacted this summer, our employees were forced to navigate a complex web. This is beneficial for Smaller Companies we represent who cannot afford expensive legal advisors. The act will help the Participation Rate among women. In states like kentucky, which ranks 44th in the nation for labor force participation, we know one contributor to the statistic is a pregnant worker who was forced out or quit a job due to a lack of reasonable accommodation. By clearly laying the groundwork for informed dialogue between employers and employees, women can work safely and productively throughout the course of a pregnancy and afterwards. The act includes probusiness safeguards to ensure accommodations will not cause financial harm to a business or significantly interfere with daytoday operations. While most accommodations are lowcost, access to water to stay hydrated, modified work schedule like the ada, the law includes an undue hardship standard that would exempt employers if this would cause expense. There is a clear bottom line. The act is probusiness and proworkforce. Gli urges congress to pass the act. Thank you. Thank you for your testimony. I recognize ms. Mcglocklin for five minutes. Thank you, chair, Ranking Member and members of the subcommittee for the opportunity to testify. I am a partner in the law firm of cypress shaw. Today i testify on my own behalf. I have practiced law exclusively in the employment arena for 38 years, defending employers before administrative agencies and in state and federal court. A significant portion of my practice is dedicated to providing advice and counsel on accommodation issues. I have coauthored comments to the proposed regulations, to the ada and the amendments act. I coauthored comments to the dol regulations in 2008 and this year when dol proposed using a new form. June, 2011, i was one of two management attorneys in the country invited by the eeoc to testify at a public hearing on the issue of leave as accommodation. The purpose of my testimony is not to take a position on this bill but rather to describe the protections currently afforded workers who are pregnant and raise questions i hope the subcommittee will consider regarding proposed legislation. There are three primary laws at federal level affording protection to pregnant workers. The pregnancy discrimination act provides an employer violating title vii if it intentionally discriminates against employee due to pregnancy. If a worker is temporarily unable to perform her job, duties due to a medical condition related to the pregnancy or childbirth, the pda mandate an employer must treat her in the same way it treats other temporarily disabled employees. The ada amendments act broadened the definition of disability such that pregnancy related restrictions may constitute disability, thus triggering the employers duty to reasonably accommodate. Federal Court Decisions have specifically held pregnancy related medical conditions are disabilities. The fmla provides a pregnant employee can take 12 weeks of job protected leave in a 12 month period due to pregnancy including intermittant basis. State laws, 25 of them, 27 now provide protection but they have varying definitions of what a nonlimitation is, ranging from new york, that references inhibiting the exercise of normal bodily function, to the illinois law, my home state, that references any medical or common condition relating to pregnancy. It is against this existing legal landscape we have this present bill that talks about mandating reasonable accommodation to nonlimitation related to pregnancy, absent undue hardship. The phrase, no limitations, is not defined in the bill. It is clearly different than the definition of a covered disability under the ada. While the definition of the disability under the ada may not be perfect, it has been interpreted by courts over periods of years and employers are familiar with standards. Given the bills language, it appears any limitation of any type for any duration may be covered as long as the employer is aware of it. The bill also does not address another key provision from the ada, which is a reasonable accommodation statute, and that is essential job function. Under the ada, and employer need not provide the accommodation when an employee remains unable to perform the essential functions of the job even with the accommodation. By limiting the essential function criteria, the bill appears to require that employers keep employee on the job regardless of their ability to continue to perform the core function. The bill does not address other key issues that are explicitly addressed by ada such as, not including defense that an employee may not pose a direct threat to the health and safety of themselves or others and it is also unclear as to what happens if the accommodation sought by the employee creates an undue hardship and whether or not employer would then be able to put the employee on leave then. In conclusion, i believe legislation does not address key issues and questions that are important, especially the lack of a definition for its most fundamental term, known limitations and the lack of any reference to essential Job Functions. I believe the issues i have raised are appropriate, and that this Committee Work through this legislation and consider the purpose and practical effect of this bill on the already complex matrix of federal and state laws on the subject. Thank you. Thank you for your testimony. I recognize five minutes. Thank you, chair, Ranking Member and members of the subcommittee. 41 years ago, Congress Passed the pregnancy discrimination act. Im here to tell you that pregnant women in this country are often treated as secondclass citizens. Pregnancy discrimination remains rampant in america and a key barrier to gender equality. A common form, especially impacting women in physically demanding jobs, predominantly women of color, are when women are forced out rather than provided temporary accommodations that would allow them to keep working. They often face an impossible choice. Stay on the job or risk health, or lose their paycheck. We have heard hundreds of these stories over the years. A former client, a cashier from upstate new york, was told she should juststay home, take care of her pregnancy and rest after handing in a doctors note with a lifting restriction, even though she could have easily been accommodated and desperately wanted to keep working. With no paycheck, she wound up homeless and had to rely on family and friends for shelter, moving from couch to couch as she prepared to become a mom. The economical wellbeing of most American Families today is dependent on working mothers. When they lose critical income, they suffer shortterm and lose longterm benefits and contributing to the wage gap. When pregnant women are denied workplace accommodation, their health suffers. One pregnant cashier was told she could not carry a water bottle on the job. She wound up in the er due to severe dehydration after fainting and collapsing on the retail floor. Other Health Risks Associated with failure to accommodate include urinary tract infections, fainting, low birth weight and miscarriage, evidenced by the expense of our client who was featured in a frontpage New York Times story last year. These options, risk your health or lose your paycheck, reinforce the stereotype that pregnancy, motherhood and employment are irreconcilable and defy the purpose of the pregnancy discrimination act. Five years ago, Supreme Court addressed the application. Unfortunately, the multistep framework established by the majority and the unique burden it provides pregnant workers to prove the intention was discriminatory has made it difficult and often impossible for pregnant workers to succeed in court and get accommodations they need. This is tone deaf to the realities of the american workplace, where pregnant workers typically lack access to workplace accommodation requests, personnel files and the luxury of time and resources to sort out questions. The ada offers workers with disabilities the explicit right to accommodations, up to undue hardship. They bypass the burden of proving a coworker was accommodated first. Close pregnant workers with medical needs are not deemed disabled under the ada and fail to pursue protections. The bipartisan pwa would fulfill this intent. It would require employers to make reasonable accommodations. The same familiar process is in place for workers with disabilities. Pwa would ensure a worker cannot be forced to take leave if another accommodation can keep her working in healthy. The law would encourage a productive and formal dialogue between employer and employee rather than stressful and timeconsuming litigation. This is precisely what most premium women need and want. They need clear rights and Immediate Solutions to stay that allows them to follow Doctors Orders and stay attached to the workforce. Requiring a pregnant worker to jump through legal hoops to get a medically necessary accommodation is a fundamental deterrent to justice and equality. State legislators on both sides of the aisle have recognized the need to take action. There are 27 states from new jersey to kentucky that provide it. We see these laws are working. Thanks to new jerseys law, a Public Employee was quickly able to follow her Doctors Orders and return to work in a light duty position. States have improved conditions for thousands of women. A healthy Work Environment should not depend on luck or location. The pw fa would ensure pregnant workers in every corner of the country stand on equal footing in the workplace. No one should have to choose between her job and a healthy pregnancy. It is time for congress to step up and pass critical legislation. It is long overdue. Thank you. Thank you for your testimony. Under Committee Rule 8a, we will now question witnesses under the five minute rule alternating between parties. I recognize myself or five minutes. Ms. Durham, i understand you demonstrated to the court your employer was accommodating your similarly situated coworkers, who had similar light duty lifting restrictions but did not offer the same restrictions to you when you are pregnant. How did you feel when you learned you proved others got accommodations, it wasnt enough for you to win your case . Honestly, that felt very discouraging. That felt like a misunderstanding. I contacted the lawyer in birmingham. The original intent and what we had done was send them a letter to clear this up because it seemed like it was a big misunderstanding. They were already accommodating others who had restrictions. Is this expense common and how would this act address issues she faced in court . Unfortunately, it is all too common. In our recent report, long overdue, we found in over 2 3 of cases, workers are losing their cases and in over 70 , they are losing them because they are unable to identify a sufficiently valid comparative. That is a real barrier to equality and justice for pregnant women. Another worker, cassondra, her case stands out. She worked parttime loading and unloading boxes in tennessee. She requested light duty per Doctors Orders and the Company Refused to accommodate and push her out on unpaid leave. She presented to the court a spreadsheet of 251 other employees who were provided light duty and pointed to a coworker who was provided. The court rejected the evidence since the spreadsheet did not have detailed information about other employees ability or inability to work. Therefore, they were insufficient comparatives. This is an insurmountable and extra ordinarily difficult burden for a pregnant worker to meet. Thank you. Ms. Baxter, i want to follow up on testimony. Ms. Mcglocklin was expressing concern about the pregnant workers fairness act, the use of the term, known limitations. She stated the phrase is clearly different than the definition of a covered disability under ada. I wonder if you could take a minute and respond to that concern and what pregnancy related impairments disabilities have the courts not deemed covered under the ada or the Amendment Act . How is the pwfa addressing this . The first question, yes. The intent of the pregnant worker fairness act is precisely to incur coverage for pregnant workers with limitations or medical needs stemming from pregnancy that do not qualify as covered disability under ada. Those imitations could jeopardize health, but are not deemed disabilities at. Yet. Please note, pwfa borrows familiar standards from ada, like reasonable accommodations on undue hardship and process. The fundamental nature of the law, the fundamental framework is similar. Covered disabilities, no, it is not in the pwfa context precisely because those are the women, pregnant workers are often not found to have qualified his abilities. To answer the question, about the ada and who is covered, we have seen courts interpret ada, even though it was amended, 2008, and i will say there is a pool of workers and i have been courts that have ruled that there are workers with pregnancy related complications that should be covered under ada but there are a lot that we have reviewed that are not. It is quite alarming. For example, tonya oliver from pennsylvania had highrisk medical complications associated with highrisk pregnancy from triplets, needing surgery at birth. They said the ada did not protect her because highrisk pregnancy was not enough. Another woman went to the er and was diagnosed with a form of morning sickness and a low level of potassium. The court said it was not a disability. Jennifer experienced complications and bleeding at work. 2016, the court said she failed to show her pregnancy related complications constitute a disability under ada. That is unacceptable. Those women need clear rights to accommodation so they can follow Doctors Orders and stay healthy and on the job. Thank you. My time is about to expire. I thank you for bringing the business perspective, ms. Wilber. That was part of the conversation when oregon passed the bill. I dont have time for a question but i thank you for that perspective. I yield five minutes to mr. Thompson from pennsylvania. Thank you madam chair, thank you ladies for being here. Really important hearing and topic. Ms. Mcglocklin, thanks for being here. Discrimination of any type should not be tolerated. I strongly support federal laws that protect pregnant workers such as pregnancy discrimination act of 1978 and the ada. Pda provides this termination based on pregnancy when it comes to any aspect of employment and furthermore, ada requires employers make reasonable accommodation for individuals who have a physical or mental impairment, one or more major Life Activities limiting. That includes performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting or bending. Pregnancy is not an impairment itself. Ada covers impairments related to pregnancy which can impair major life activity. Under ada, employers may have qualification standards such as physical, medical safety and other requirements that may impact negatively some individuals. Is there a similar provision . There is not. What is the purpose of the ada provision . Under the ada qualification standard, would basically mean you have a job standard that applies equally to everyone. It may have an impact on a protected group of under ada, disabled individuals, then, the Employer Needs to make certain that standard is jobrelated and consistent with business necessity. By way of example, if you had a Police Department that required all officers to be able to respond to forcible arrest and perform Job Functions, that is a very physical attribute and may have an impact on someone with a disability. Likewise, frankly, may have an impact on a pregnant worker unable to respond to their essential function of responding to a forcible arrest. The qualification standard is very much like the central job function. It is a different way of putting it in terms of impact but not included in this current bill. Hr 2694 includes the term, known limitations, as we have heard relating to pregnancy. How does the bill define this . This is one of my big concerns with the bill. Known limitations is not defined. If it is going to be defined as not a disability, physical or mental impairment substantially limiting a major life activity, the ada definition, what is it . Employers need to know that, both the employer and Employee Community Going Forward understanding what their obligations are. Are there any restrictions to these limitations . There are not. Outside this bill, is this a welldefined, legal term . I think you can tell by the various definitions that the states have used, that it is not. All the states use very different words to express what they mean by known limitation. Known limitation. As far as i know, it is not a term that is known by either employer or Employee Community. In the effort to prevent discrimination of pregnant workers, which i am always supportive of, does hr 2694 improve clarity for protections of these employees or does it, in its current form . In its current form, it is missing key terms. The definition of known limitation, essential Job Functions, qualification standards. What if the pregnant worker is a direct threat in certain safety sensitive jobs to the health and safety of themselves or others . Because it could be improved, it is not as clear as it could be. Once again, i want to make sure we do everything we can to prevent discrimination for pregnant workers. It is incredibly important. It is important enough that we get it right. I am not sure hr 2694 currently provides that type of clarity. Thank you, madam chair. Yield back. I now yield five minutes to the doctor from washington for your questions. Thank you, madam chair. I would like to submit for the record a letter from the National Womens and Childrens Association endorsing pregnant workers fairness act, into the record. Without objection. I had a highrisk pregnancy complicated by advanced maternal age, which i call, elderly mom syndrome at age 40, and 24 years of type 1 diabetes. I worked until two days before my csection. I was fortunate that my employer allowed for minor accommodations, very minor, that allowed me to continue to work. We need to remember, women are half the workforce. I would add to that, they tend to do better in college and are excellent in their jobs. 75 of those women will become pregnant at some point. It should be plainly obvious that we should support pregnant people in their pregnancies just like we should support public education. This is how we make our society better. Health care is widely understood, preventative measures and addressing small issues before they escalate our ways to lessen the cost of care. Hospital bills cost between 5,000 and 11,000 just for a regular delivery plus the costs of preparing and taking care of the baby. It costs all of us when we dont do that and when the baby is born at 24 weeks and requires months in the nicu. It costs us all when a fetus is exposed to toxins in utero, which may need public support for the rest of their life, because we could not protect the mother from an unhealthy environment. It costs us all when we lose our workforce. Pregnant mothers are not welcomed and supported in the workplace. My first question, thank you so much for sharing your story, and i am so sorry for the pain and anxiety and the Financial Hardship you had to go through, really unnecessarily. I also had a highrisk pregnancy. In your remarks, you discussed how losing your job did not just affect planning for the birth but also your plans to support your child longterm. There are a lot of costs in pregnancies that are not related to the birth. Diverse doctor appointments, etc. Would you speak to your experience, what did you have to do speak to your experience, what did you have to do to support your son since losing your job . Trying to keep up with that pay and Everything Else i need to support him. I have been fortunate. I have a good support system back home between family and friends and i have gotten several gifts, handmedowns and help in that department but it has been hard. Childcare in and of itself is expensive, even in my state, where a lot of cost is lower. It has been a rough trip. We take it day by day. We do what we have to do to get there. Thank you. Thank you for your work to strengthen protections for pregnant workers. In your remarks, you stated 2 3 of women have lost their claims post 2015, young v. Ups. Heavy lifting can result in preterm births, exposure to environmental toxins can result in harm to the mother and fetus, pregnancy induced hypertension can have devastating outcomes including Maternal Death. They use to say that pregnancy was like having one foot in the grave. How will adequate accommodations improve the life outcomes of the pregnant worker, and do you foresee a direct relationship between Maternal Death rates and pregnant Worker Protections . I think that, time and time again, we see how affording pregnant workers temporary a combination serves to keep them healthy, maintain a healthy pregnancy, and prevent competitions down the road. Keeping them out of the hospital, exacerbating Health Care Savings costs, which come as you said, minor temporary accommodation, whether it is a stool, extra bathroom break, temporary relief from heavy lifting, which is not a disability, but is often something that arises from pregnancy, where women dont have a disability yet. But why should a woman have to risk her health and potentially develop a complication or qualified disability in order to trigger the loss protection . It defies common sense in a time where we are so concerned about maternal health, especially for low income women. We should be doing everything in our power to make sure these women can maintain healthy pregnancies and prevent complications before they start. I now recognize the Ranking Member of the full committee, dr. Fox from north carolina, for five minutes. I want to thank our panel. I want to say that i worked when i was pregnant, up until the day i delivered my daughter at midnight. Actually went to class that night from 7 00 to 10 00, and then went to the hospital at midnight, so i was very active up until the moment she was born. Ms. Mcglocklin, you discuss your testimony the pregnancy discrimination act and the americans with disabilities act as amended. Where these laws broadly written to cover a wide range of circumstances, in your opinion, as applied to pregnant workers . Yes, i do think both of these laws were very broadly written. The pda has very broad language about antidiscrimination and how an individual proof that there has been discrimination, but more so, the ada back in 2008 when it was amended, and i think it is best said in an article i cited in my written testimony by joan williams, pregnancy accommodation after the ada amendments act, pretty much did away with the duration requirement, and there is a specific reference to that in both eeoc guidance on pregnancy discrimination, as well as regulation under the ada, that says impairments of shortterm duration under six months can be impairments. You combine that with the expansion of the definition of major Life Activities to add more major Life Activities, including bodily function, and finally, a more favorable an employee friendly substantially limits standard, you put all of those together and pregnant workers with limitations, even if they are of more shortterm duration, are covered disabilities rep. Nadler that is coverage disabilities. That is borne out by cases, but certainly as the law as it exists. From the very beginning, i believe that all members of congress, democrats and republicans, want to see all workers protected from any harm that could occur to them, and especially pregnant women, and i think our record proves that. Hr 2694 applies to known limitations related to pregnancy, childbirth, related medical conditions for workers. Your testimony notes that the term known limitation is not defined. In contrast, a detailed definition of disability in the ada. If hr 2694 is enacted, will the courts have to define known limitations . Would there be more certainty for workers and employers if congress defined this key term in the bill . It would certainly be more beneficial for congress to define known limitations so that, moving forward, as both the employers and employees know their rights and obligations under this law, they know what that term means. While there is a provision in the bill that talks about within the two years after enactment, the eeoc should implement regulations, two years is a long time to wait. My fear is that will result in litigation, just as we had when the ada was originally passed about what the definition of disability was. Thank you. To qualify for ada protections, a worker must be able to perform the essential functions of the job with a reasonable accommodation. My understanding is that hr 2694 does not include this provision from the ada. What is your view about this discrepancy . I think it is one that needs to be seriously reviewed, and from my perspective, should be included in any bill that passes so that if a pregnant worker is accommodated, they still need to be able to perform the essential functions of the job, and if they cant, some indication as to what the employer is then permitted to do. Would it be, for example, to put them on leave, which seems to be prohibited by the bill in its current state in many circumstances . I think the essential function concept is critical to having this bill. Rep. Foxx thank you very much. I yield back, madame chairman. Rep. Bonamici thank you. I now recognize ms. Hayes from connecticut for five minutes. Rep. Hayes thank you for holding this hearing, and thank you to all the witnesses here today. As im listening to all of you talk, especially you, mr. Durham, i am reminded of my own experiences. I was a working mom, and educator who had an uneventful pregnancy. I was not older, or i did not have any cup locations, and what i thought was a reasonable accommodation became a tremendous inconvenience as a classroom teacher. All i needed was to go to the bathroom, which i thought was a reasonable request to ask, but you can imagine, and a high school with more than 1000 kids, to get coverage, i was often told, well, you just had your break. Or we only have two more periods before it is time for lunch. But just thinking i have to go now was something i dealt with, leading to further cup locations with bladder issues. So what started as an uneventful pregnancy ended up having complications as a result of this minor accommodation not being met. I delivered my son on the last day of school, so all i wanted to do was work. But part of that was not that i was so brave or strong or all true stick. I was think or all true stick or altruistic. What i dont get is the idea that pregnancy is some unforeseen limitation for a company. Weve heard that the majority of women work, and that 75 of those women will likely become pregnant while working, while in the workplace. So i want to get to the point about just the ability to perform essential Job Functions and what that means. We are hearing a lot from workers about the need to be treated equally. I dont think this is an equality issue. This is an equity issue because last i checked, men cant get pregnant, so the only people who will be affected by this will be one who get will be women who get pregnant on the job, and ask for something other employees will never have a need for. Im sorry, one second. I always forget to do this. Madam chair, i have two documents i need to smit for the record. A document from the National Womens law center, and a letter from senator Elizabeth Warren in support of the pregnant womans fairness act. Would you mind responding to the concerns around known limitations in this bill . Because i and my experience, youve heard from the people on this panel, every pregnancy is different, so how do you define the experience of a pregnancy is a known limitation . In most of the states we have worked in, it has been rather easy to define and be able to explain that pregnancy itself is not a disability, but limitations or medical needs arising from pregnancy could trigger the need for an accommodation. So the law uses the term known limitations to reflect those scenarios where there is a need for an accommodation, and it must be known to the employer. And the essential functions question, was that related . Rep. Hayes because i didnt hear going to the bathroom in that list of essential life functions. Right. You make an important point, that pregnancy is only temporarily. That is for sure. We know that. So needing to have some essential functions temporarily excused for a limited duration is reasonable, and in fact, there are some cases in the ada context that say just that. Because we would have reasonable timeframe which, in some instances, certainly not all, where a woman wouldnt be able to perform the essential functions of her job, do you really think a pregnant woman cant lift 40 pounds overhead for a month should lose her job and her Health Insurance . Even when she could transfer to another department or when coworkers want to help them . Thats what we see all the time, the coworkers want to work it out. And then hr points to a piece of paper and says, you cant do the essential functions of your job. You are out. That doesnt make sense. We need a way to keep pregnant workers working, and on occasion, if they need a transfer because in the near future, they will be able to perform the essential functions of the job. And again, if this is undue hardship, the employer need not provide the accommodation, but the law would require the employer to consider the accommodation request rather than just wishing the pregnant worker out, and then all of the devastating economic consequences that often flow from the. Rep. Hayes thank you. I will yield back. Rep. Bonamici thank you. I now recognize representatives to phonic for 5 represented of stepha i now recognize representative stepanek for five minutes. Rep. Stefanik thank you. I was proud to recently introduced the pregnancy to skirmish and act with my colleagues that would enhance protections for pregnant women in the workplace. We all agree that pregnant workers should be predicted and reasonably accommodated in the workplace, and as we consider further changes to the law, it is important to take a step back to ensure we have a better sense of what has and has not been working. Ms. Mclaughlin, the ada includes a comprehensive definition of disability. Does this need to include more guidance on what limitations are covered or not covered by the bill . I think that would be extremely helpful to understand, does it mean any and all limitations always, no matter how short . If that is the intent of the bill, it would be very helpful to employers to understand that. That phrase at this point is not well defined, and i believe should be. The bill also incorporates the definitions of reasonable accommodation and undue hardship. Does it use any other terms or concepts from the ada . Should other features of the ada be considered for inclusion in the bill . The bill does reference reasonable accommodation and undue hardship, and since it should be similar to the ada. It references using the interactive process, and that is really where it stops, i would say, other than the damages scheme is the same. What it should include, because they are both accommodation statutes, is a better built out definition of known limitations, as well as a reference to a central function, as well as a reference to the direct threat defense and qualification standards. That would be a good start to really pattern the ada. It may be different, but those concepts are the same because they are both accommodation statutes. I would just end saying employers and employees are used to working with the concepts and definitions under the ada. Thank you. That is very helpful to provide that feedback. I yield back. Thank you. I now recognize ms. Lee from nevada for your five minutes of questions. I would like to enter into the record a letter from the National Partnership of women and families in support of this bill. Without objection. This bill is incredibly important to me. Im the mother of two children. However, i had several unsuccessful pregnancies. When i had my son, i spent three months on bed rest before he was born and dehydration was the factor cited in pushing me into premature later. There was other fact premature labor. There were other factors, but i know these can be the difference between having a help the baby a healthy baby or going into premature labor and possibly having a severely premature baby, which is what i was at risk of. Just thinking about all of the costs and complications associated with that, or even having a miscarriage. The bottom line is that women should never have to make the choice between ignoring a Doctors Orders or keeping a job. Sadly, it is low income families that are most vulnerable when these simple protections dont exist. That is why the pregnant workers fairness act is so important. In nevada, where over 64 of women are the primary or cobreadwinners, these women are more likely to work lowwage jobs. A woman in nevada is more likely to work a lowwage job than a man. When she is forced to leave her job because she didnt receive reasonable accommodations at work, it is their families that are forced to live without Health Insurance or income during a time when they need it the most, as ms. Durham explained. The current legal loopholes have already been highlighted here today, and it is clear that working mothers and businesses need the clarity to ensure that pregnant women can be accommodated. These accommodations are simple, like a stool to sit on, an extra bathroom break, perhaps a larger uniform to accommodate a growing baby, or even carrying a water bottle onto the floor. Working women who are pregnant dont have the time or the resources to take these matters to court and works through the litigation to receive these accommodations, and ms. Durham, first of all, i am sorry that you had to go through that process. I personally get frustrated thinking about the life that you could have had and the job that you trained for had these competitions been made for you, had these accommodations been made for you. You described how kentucky passed a version of this bill, and it was supported by businesses who recognize the economic benefits of providing clarity and uniformity on the issue of reasonable accommodation. Can you tell us, what were the employersi nitial worries about providing accommodation . Thank you for the question. This is sort of a long journey for the chamber of commerce. Weve heard about these issues bubbling up across the country, and some folks had approached our Metro Chamber to explore this issue, so after some conversations among our membership of all sizes, of all different sectors and industries, we learned pretty quickly that because we had a whole list of questions that we needed this type of clarity. For our membership, when you have a bunch of questions and concerns, a lot of uncertainty, that means dollars, and a bad way. Being able to work on the kentucky legislation to provide the framework of when a worker is or is not obligated to provide accommodations is extremely significant. As i said earlier, particularly for small to midsized businesses that cannot afford an Hr Department, being able to work on the kentucky legislation with our General Assembly to define the undue hardship was extremely significant because we are talking about providing a stool. Are we talking about a 4000 stool . No, we are not. These are lowcost, reasonable accommodations, and they are temporary. We were able to message that not only to lawmakers, but to the business community. We got the feedback that we are sort of already doing this because we wanted to do the right thing in the business community. But if we can get some framework or state statute to define when we are or are not obligated to do these things, that is a welcome addition to kentucky law. Thank you. How is insuring pregnant workers having reasonable accommodations a tool to increase womens labor participation, and what does that mean for the academic outcomes, not just to both businesses, but also their employees . In kentucky, unfortunately we have one of the lowest workforce Participation Rates among women. When we look at the population currently in the labor force, we know that over 50 of them are of childbearing age. These are conversations that are happening already. So we ask ourselves, particularly at the chamber of commerce, one of the top initiatives we are hearing is that talent pipeline, talent attraction. We need to have certainty in statutes to allow employers to know when they are or are not obligated, but also to ensure that women who are pregnant or new mothers who want to work are able to work. We think this is a reasonable law, particularly at the federal level, to provide uniformity and clarity across the board. It is significant particularly for our chamber of commerce to be able to have that clarity across the board. Rep. Lee thank you. My time is up. I yield back. Rep. Bonamici thank you. I now recognize were presented to johnson from south dakota for five minutes for your questions. Rep. Johnson i want to thank my colleagues for sharing their stories. I think it is a Good Opportunity for a lot of us to understand the issues of the modern workplace. Miss mclaughlin, there will be times when some employees will be unable to perform the essential duties of their job, even after reasonable accommodation. Under hr 2694, what are the employer obligations in that situation . Ms. Mclaughlin you just dont really know because essential functions is not a term in the bill, so it is very unclear if somebody cannot perform their job, even with the accommodation, what should happen. Is it a situation where there is a mandate similar to the ada . Where the accommodation of last resort under the ada is job reassignment, and if you are reassigned to a job that pays less . Or if you have to put someone on leave, or make work for that individual. Thats what we call light duty sometimes, removing essential functions. We try to get somebody to perform their essential functions come but its essential function, but sometime they are unable to. It is just not in this bill, and it needs to be further clarified, including some of the things i just talked about. Rep. Johnson the ada has a clear and easy to understand set of accommodation processes. This bill lacks that. Is that right . Ms. Mclaughlin thats correct. Rep. Johnson you ran through some options of the ada. There can be reasonable accommodation, the first tier, among things that can be done there. Reassignment is sort of the next option . Ms. Mclaughlin that is always the accommodation of last resort under the ada. The goal is to keep somebody in their position. Rep. Johnson does leave come after that, then . Ms. Mclaughlin the way i would tier it is, can we accommodate . If not, we would try to reassign. If neither of those two work, it would believe it would be leave. Rep. Johnson does some testimony today regarding the loss of benefits if somebody was on fmla, what does the Legal Framework there look like . Ms. Mclaughlin under the fmla, you have 12 weeks of job protections when you go on leave. There is a requirement that the individuals Health Insurance needs to remain in effect for the 12 weeks that the individual is on leave, which could be a continuous leave or intermittent. Rep. Johnson after that 12 week period, theres no job protection. It sounds as though there is no benefit protection either. Ms. Mclaughlin thats correct. Rep. Johnson there would be a cobra opportunity, i assume. Ms. Mclaughlin there could be a cobra triggering event. Many employers i worked with would just continue to have the individuals Health Insurance remain in effect as if they were actively employed, but thats not a legal requirement. Rep. Johnson i dont want to put words in your mouth, but i get the sense that you are concerned about, and you said some of this, about the lack of to competition the lack of definition with some of the terms and the litigation that would trigger. In my right in saying that . Ms. Mclaughlin you are. I think anytime in the law when things are unclear, people fight about it. People bring claims, and we want to avoid that. Rep. Johnson thank you very much come about and share. Very much, madam chair. Rep. Bonamici and now represent congressman scott from virginia for your questions. Rep. Scott thank you, madam chair. Ms. Bakst, under present law, if workers are treated differently, for example, if one employer makes an accommodation for anna accommodated worker, but the next worker the next employer does not provide that same accommodation, under present law, do the pregnant woman have different rights to the accommodation . Ms. Bakst right now, we are in a world where Many Employers have clear policies to provide accommodation for workers with disabilities, workers with onthejob injuries, and other scenarios, but yet, pregnant workers arent afforded does accommodation protections. We are in a world where pregnant workers are not achieving most favored nation status. They are achieving least favored nation status. They are being left out, unprotected, and denied the equal opportunity that the pregnancy discrimination act intended when it was put into place for pregnant workers and ensured fairness in the playing field. Rep. Scott you would get the same accommodation that employee got. Is that right . Ms. Bakst if you are similarly situated, it is a multistep evidentiary burden that a pregnant worker has to prove, and then the plaintiff is another showing. The point is that a pregnant worker needs to produce evidence of intentional discrimination in order to get a basic accommodation, like a stool, a water bottle, an extra bathroom break. That is outrageous. Rep. Scott how does this work if there are no similar employees . Ms. Bakst they lose because not only does it say you need pride a comparator, but what we hear is that they dont have a competitor a comparator. They just lose the job. For lowwage women, they dont have full access to their Company Policies if there are any they are willing to share with their workers. They cant point to a comparator, and they just need their own medically necessary accommodation, and they are running against the clock to get one, and they are out of luck. Rep. Scott does the americans with disability act require you to find an individual with similar competition . With similar accommodation . Ms. Bakst no. The law requires a good faith, interactive process to figure out if you can make it work. That is the standard. Rep. Scott how long is the americans with how long has the americans with disabilities act been around . Ms. Bakst since 1990, and amended in 1998 with bipartisan support. In all the states that we have worked with and legislators, everybody says this is going to provide clarity for hr because they know what reasonable accommodations and undue hardships mean. They are already doing this in the ada context. Rep. Scott if someone is unable to perform the essential elements of a job, even without accommodation, what happens . Ms. Bakst if someone is unable to perform under pwfa under the american with disabilities act. They are not deemed qualified and they are typically put out on leave. Miss wilbur, can you remind us what the value is of having one federal standard, you have a law in kentucky and a different in ohio, who what would be the value of one federal standard . We work in a global economy. Louisville is very fortunate to have Corporate Headquarters based in our region and so being able to have the uniformity is significant. Weve made gains in the commonwealth of kentucky but we are committed to working on seeming similar legislation across the state. Across the river. There are 27 states that have a version of this. So the employers and businesses that i have that multistate present, federal clarity is significant so we dont have to get them piece by piece. A statement for the record submitted by the march of dimes in support of the legislation introduced. Without objection. I recognize the Ranking Member of the subcommittee for five minutes for your question. Thank you and miss mcglocklin i certainly concur with what chairman chairwoman fox said. We all want workers to be treated fairly and we support vigorous enforcement of the pregnancy determination act and the americans with disability act. In your experience do employers have policies to provide reasonable accommodations to pregnant workers . Many employers i work with have extended their reasonable accommodation policy utilized for the ada to pregnant workers using the same framework under the ada for the pregnancy accommodations. What approach do employers take when a pregnant worker seeks an accommodation . It does mirror the ada so there is a request for an accommodation in the interactive process. There is the ability under ada and i would assume it should be also under this bill to have medical information with respect to the condition, it wouldnt be really with the pregnancy more so where accommodation is needed and to work through whether the accommodations can be put in place absent undue hardship. Its a dialogue between hr and the individual as well as the health care provider. In your testimony you noted a careful balance was struck in the ada between the right to workers with disabilities and the recommendation that employers cannot recommend a remedy every situation that arises. Is a federal framework proposed by hr 2694 strike a similar careful balance . Its difficult to tell frankly because in my opinion there are so many terms that are critical that are missing or not well defined so i get back to the known limitations. We if a careful balance is struck, a balance was struck between whether the law covers anything and everything or it doesnt. It is simply not clear from the law as its written. What provision should be look at to ensure there is a balance. It would be no limitations definition, essential function. It would be helpful to know if somebody can perform their essential function even with the accommodation does it mirror the ada with respect to job reassignment and then leave. Direct threat standards and qualification standards, some of those very key terms under the ada would be very helpful to be in this bill so that there is clarity for everyone. Miss mcglocklin, the eeoc states enforcement guidance on pregnancy discrimination that the ada can apply to pregnancy related impairments that are temporary, do you agree . Yes. Does the ada as amended in 2008 apply to temporary impairment . It does. In fact there is a regulation that states that impairments lasting fewer than six months can be disabilities. The reason it was put in there specifically was because there was some other language in the act about regarded as to bit disabilities and made it sound like that was six months above. This particular regulation to me makes it very clear it is temporary impairments can be disabilities. As my friend stated, kentucky recently enacted the pregnant workers act to provide explicit protections for pregnant workers. Are there differences between the kentucky law and this proposal . There are. The kentucky law references the employees own limitations relating to her own pregnancy. So is a little different. It does provide examples as to what a reasonable accommodation should be and i think most importantly it fleshes out undue hardship and states the duration of the requested accommodation may be a accommodation may be a factor to consider as well as whether similar accommodations have been made to nonpregnant workers. So it has many more definitions built out in it. I appreciate the testimony and madam chair, i appreciate the hearing today and i think a lot of useful information has been retrieved from this and i look forward to working to ensure all pregnant women are protected in the workforce. With that, i yield back. I now recognize we are moving to the members who are here not on the committee and i recognize congresswoman from georgia for five minutes for your questions. Thank you so much madame chairwoman and thank you to the witnesses here today. I myself having been a Flight Attendant for 30 years before i came to congress, i do understand specific specifics about Workplace Safety and i can tell you having worked in an industry, there are no particular Safety Measures put in place for Flight Attendants pregnant, i myself continue to fly while i was pregnant. After however three miscarriages and a fetal, my doctor took it upon herself to say stay home, you can no longer work and i was placed on shortterm disability so there were no specific guidelines given to pregnant women and pregnant workers in the Airline Industry that im completely aware of. Women shouldnt have to choose between a healthy pregnancy and a paycheck. And almost 64 of american women are the primary soul or cobreadwinners and their family. But right now women can essentially be fired for being pregnant. Pregnant workers fairness act will ensure the health of our women and their babies does not, at the expense of Economic Activity or Economic Security, this issue is especially pressing for low income women as it was mentioned, many of whom work on their feet in physically demanding jobs and cannot afford lost wages. 27 states have passed laws that require certain employers to provide accommodations to pregnant women. It is time for federal action that guarantees all pregnant women are protected from discrimination. We all want to support working mothers, i think thats been established here today. A bipartisan proposal that protects pregnant women by allowing a simple accommodation. Accommodations that will make women safer and their children healthier. I do have here a letter from a leading private sector employers in support of this legislation, i asked read and miss consent that this be submitted for the record. Without objection. My question is for you and thank you for your testimony today. I believe clarity in the law is good for both employers and in and for workers. Providing these protections is not only morally right, but it makes Good Business sense. I would like to talk about the business of this act. How would federal legislation provide Legal Certainty and decreased legal in terms of small and midsize employers that may not have legal departments . Companies of all sizes across the board demand clarity because as you mentioned in your question, when we have a certainty in the market and the workplace, that means dollars for businesses and thats not in a good way. Being able to have that on how to handle situations involving pregnancy and related medical conditions is essential. Many employers, people that run businesses want to focus on making investments in their company, most are not experts on dealing with conditions related to pregnancy, so having this guidance where it is treated separately from the ada, it separate for that reason. It is important and thats why states like kentucky have stepped up to put within state statute clarity and we will remain committed further states doing that as well. Hoping for federal legislation to step in and provide that clarity across the board. For us, we worked on this issue. We learned there is data showing state law have not seen increases in litigation costs or litigation filings, theyve seen decreases. Kentucky passed a law this spring and it became official law over the summer, still fairly new but the sky has not fallen. We havent seen in over run of cases being filed for unreasonable pregnancy accommodations being requested in kentucky workplaces. Thats why we are confident in fully support the pregnant workers fairness act. How will the pregnant workers fairness act help to reduce litigation . For the very that i mentioned, being able to have that clarity so employers know when they are and are not obligated to provide reasonable accommodations, the federal law helps provide that framework. Employers are familiar with ada. And so being able to lean on the undue hardship clause in particular is significant for employers because of the end of the day these accommodations are temporary. We are talking about a bottle of water at the workstation, a stool to sit on. When employers know what that means, those reasonable flexible standards, we are confident this will reduce litigation. Thank you very much. I now recognize another member of the full committee, ms. Underwood from illinois for five minutes for your question. Thank you for calling this important hearing and for all of our witnesses for joining us today. Its been 41 years since the pregnancy discrimination act of 1978 became law. Women today continue to face his criminal and unfair treatment at work due to pregnancy. Women are denied access to reasonable conditions. And working conditions that threaten their health and pregnancy. I feel like its critical we sent to the discussion on the effects it has on the health of the woman, her family and pregnancy. So what are some of the physical requirements at work that pricked pregnant women have been subject to . Can you clarify . We have seen allegations people are not being given stools. Like what kind of accommodations do they need . Typical accommodations include more frequent restroom breaks, some modification of a work schedule temporarily. Light duty, a water bottle, these are some of the most common Workplace Accommodations pregnant workers need unless some further comp to prevent some further complication down the road. Those of the most common types. This is an interactive process. The undue hardship exists if those accommodations are not available but what we are talking about are temporary accommodations. What about Mental Health stressors this can cause a woman and her family . We have heard from so many women and i really bring those women here to this forum today who have had profound emotional stress from being forced off the job and worrying about how are they going to put food on the table and feed their families, stay afloat and sink into a poverty hole that they cannot climb out of. Then they become mothers and find it difficult trying to get rehired in an already pretty brutal job market and we wonder, this is really a key trigger, an important factor. Ensuring that women for their own health and the health of their pregnancy can stay attached to the workforce and earn critical income is absolutely essential. So today women make up about half of the workforce. 71 of mothers work outside the home. Women are often crucial in family Economic Security. 42 of working mothers with their families primary breadwinner. So you said there is certainly an impact on the gender wage gap, other other impacts that you would like to share with the committee today . It exacerbates economic inequality. These are disproportionately low income women. I want to make the point, we miss maclachlan mentioned it protects and provide some protection, we need to be clear most of these most of the women we are talking about are not covered by the fmla because it mostly covers workers in higher wage positions. 40 of workers arent covered by that law. And those are unpaid jobs. It is unpaid regardless. But if you are lucky enough, we heard from women who are lucky enough to be covered, but when they are forced out on leave they are often forced off and forced to use up their leave before they can give birth and then they have either they are fired because they have no time or no time to recover from childbirth. And no time to establish breastfeeding. It becomes really impossible to be able to support themselves and their families without risking their Economic Security. That sounds like an additional level of stress that many of these mothers are facing. We know their Health Complications with these many physical stressors and Mental Health stressors. Are you familiar with any Health Complications if pregnant workers are not provided these accommodations and have any women you worked with face those health risks . Yes. I cited a couple in my own testimony and written testimony as well talking about what kind of research is out there that connects a lack of accommodation and Health Complications. A lot of those situations could simply be avoided and prevented if we guarantee an explicit right to accommodations currently available to workers. 80s just essential we do everything we can to ensure that for women so they dont have to suffer those consequences. We know this is a potential Public Health crisis if we dont pass this act. I ask unanimous consent and enter a letter from Healthcare Providers and Public Health experts in support of the act. Without objection. Thank you for consideration of this bill. I recognize mr. Cohen from tennessee for five minutes for your questions. Thank you madam chair. Ms. Mclaughlin, youve expressed concern the application of the undue hardship provision might limit the employers options. And in your written testimony you state it suggests employers do not place workers on leave if an accommodation exists that would address the known limitations. Even if that accommodation results in undue hardship. Would you agree that if pregnant employees placed on leave as an accommodation that it should be paid leave . That would pen on Financial Resources of the employer. If employers can afford paid leave and others cannot. Do you believe a woman who has a job who is pregnant, who is doing the most essential thing on this earth, which is to reproduce and keep the human species going, without that, none of us would be here. Do you believe that that woman shouldnt get paid leave if the employer under a law or rule you supports suggests instead of doing accommodation on her work that the accommodation is to put them on leave that they should not be paid . I guess the way i was interpreting your original question was should the employer have to pay for the leave. I would suggest if congress feels that those types of leave should be paid and i know there have been introduction of bills in the past, that that to me is something that congress should mandate rather than imposing the duty to pay on the employer. What if congress imposes it on the employer . Dont you think the woman should be paid . I dont really think that my personal opinion is relevant here. But your opinion here is that the accommodation is wrong because it doesnt allow employers to put a person on leave. If they put them on leave and dont pay them, that is not an accommodation, that is a penalty. And at the end of the day, the Employer Needs to run its business too. And also accommodate pregnant workers or disabled workers and there are circumstances that leave is going to be unpaid. If the government were into intervene and mandate paid leave for employers, whether it would be some sort of subsidy for unemployment, through the employer having to pay, but i really think that is something that needs to be legislated. Thank you. In 2014, memphis had a plan. It was the subject of a major story in the New York Times concerning work conditions there and pregnant women which i would like entered to the record. Without objection. One of the former employees brought her doctors note to do no heavy lifting. The supervisor did not accommodate the doctors note nor reassign her to a different area. She continued doing her signed work of lifting boxes weighing almost 50 pounds and as a result she suffered a miscarriage. Currently employers can arbitrate to determine what is an necessary burden to accommodate. How with the undue hardship standard of the pregnant workers fairness act come into play in this situation . She suffered profound Health Consequences as the result of being denied that in the way it would work is that the employer would try to see if there was an alternative way to honor her doctors note and if it was not reasonable it would constitute an undue hardship. The employer would need to accommodate her. What is happening that women like her are being forced off the job or forced to risk their health because employers are not simply engaging in that good faith interactive process. That they are doing for workers who get disabilities and so i want to make the point if i may back to the bill, any idea that that bill would make the situation better is untrue because once again requires pregnant workers to point to others to fight find a comparator. And basically push the framework in the wrong direction because it imports new definitions of who an appropriate comparator is. And so we have to we need a clear standard pregnant women that they can follow their Doctors Orders and remain healthy and on the job. But they shouldnt have to jump through hoops, prove discrimination and weight and wait to find out if they need can be accommodated. The consequences are too profound. If i may. If the accommodation was leave, would you agree it should be paid . We at a better balance and my colleagues and advocates in the community strongly believe in paid family leave and so i think that every woman in america, every parent, every caregiver, everyone should have access to paid family medical leave. I yield back and appreciate the committees indulgence. I remind my colleagues that pursuant to Committee Practice materials for submission for the hearing record must be submitted to the Committee Clerk within 14 days following the last day of the hearings preferably in microsoft word format. Materials must address the subject matter of the hearing. Only member of the committee or invited witness may present materials for inclusion. Documents are limited to 60 pages each. Document longer will be incorporated into the record buying internet link that you must provide within the required timeframe but please recognize the link a not work years from now. I want to thank the witnesses for their participation today. What we heard is very valuable. Members of the committee may have additional questions, we ask the witnesses to please respond to those questions in writing. The hearing record will be held open for 14 days and to receive those responses. I remind my colleagues that pursuant to Committee Practice with questions for the hearing record must be submitted to the majority Committee Staff or Committee Clerk within seven days and the questions must address the subject matter of the hearing. We have some closing statements. I recognize the Ranking Member First Closing statement. Thank you madam chair and i again want to thank all the witnesses for being here today. Both parties in congress to ensure pregnant workers are protected in the workplace and i now on behalf of the minority conference we will do everything in our ability to see that every pregnant worker is protected in the workplace and hopefully we can Work Together as this bill moves forward and see that objective is achieved. With that i yield back. I recognize myself for the purpose of making a closing statement. Thank you again to the witnesses for being here and i want to add im very glad everyone every member of the committee who expressed an opinion agrees pregnant workers should be protected in the workplace. I think its a very positive step. Your compelling testimony here today confirms far too many pregnant workers are still denied access to reasonable Workplace Accommodations despite more than four decades of federal law providing for equal treatment on the job and is witnesses explained, accommodations can be simple, not unlike the accommodations for individuals covered under the americans disabilities act. Some included simple providing seating and water. Allowing additional breaks for the restroom. Worker should not have to choose within a healthy pregnancy and financial stability. This act is our opportunity to fulfill the promise of the pregnancy discrimination act and protect the health, wellbeing and Economic Security of all pregnant workers and their families by clarifying the works the rights this will finally guarantee pregnant workers the accommodation they need without fear of facing discrimination or retaliation and without waiting months or years to find out if the accommodation will be provided. This bill focuses on prevention and accommodation and that is a positive step. Again this is not a partisan issue. Several state legislatures across the country, including in the Ranking Members state of kentucky and by home state of oregon have already passed Bipartisan Legislation combating discrimination against pregnant workers and have found this certainty is good not just for pregnant workers. I hope every Committee Member here today can agree Congress Must act not only in a bipartisan manner to provide all pregnant workers access to workplace gender equity and healthy pregnancies, Financial Security regardless of where they live. I work forward to working with my colleagues to pass the act and take a long overdue step on behalf of pregnant workers and their family. With no further business without objective, the committee stands adjourned