Workplace Accommodation for Pregnant Employees

The House General, Housing, and Military Affairs Committee took testimony Thursday on H.808, which would require employers to provide accommodation for pregnant employees. Pregnancy accommodation has been the subject of recent Supreme Court action and interest by the EEOC. Approximately 17 states have related statutes, although they do not all take the approach of H.808.

As introduced, H.808 would require employers to provide “reasonable” accommodation for pregnant employees defined as “changes and modifications which can be made in the structure of a job or in the manner in which a job is performed”, which may include:

  • more frequent or longer breaks
  • time off to recover from childbirth
  • acquisition or modification of equipment
  • seating
  • temporary transfer to a less strenuous or hazardous position
  • job restructuring
  • light duty
  • assistance with manual labor
  • modified work schedules
  • provision of unpaid leave in addition to federal and state parental and family leave

Employers would be able to decline accommodation that would impose an “undue hardship”, defined as “requiring significant difficulty or expense to the employer.” Factors to be considered in determining undue hardship would include:

  • the overall size of the employer’s operation with respect to the number of employees, number and type of facilities, and size of budget
  • the cost for the accommodation needed

The bill would also prohibit retaliation and other adverse actions against employees seeking accommodation.

AIV testified on the bill Thursday. We noted our general concern about adding specific workplace mandates that can unduly limit employer discretion and create grounds for unwarranted litigation or other conflicts based on unsupported expectations or ambiguities in compliance requirements. We recommended further discussions between stakeholders and the Attorney General’s Office to better understand whether legislation is truly necessary in this case, the experiences in and lessons from other states that have passed legislation, and how to avoid unintended consequences should legislation move forward.

AIV will be seeking input from member companies and reviewing other state statutes as well as any analogous Vermont statutes that might provide lessons and models for what should or should not be enacted on this matter.

The outlook for this bill is unclear at this time. The politics of the issue and the make-up of the Committee would appear to make movement likely, but it is possible that legislative leaders might hesitate to move another employer mandate on the heels of paid sick leave, and we are in the second and final year of this biennium, which could make movement in the Senate difficult even if the bill were to pass the House.

Nevertheless, it is likely that the issue will be taken up again next year if it is not address this year. AIV will remain engaged on this bill, and we encourage members to share with us your own related experiences, policies, and concerns or suggestions. If you are interested in weighing in with legislators in writing or in person, don’t hesitate to contact us at info@aivt.org.