The Journal Gazette
Wednesday, February 17, 2021 1:00 am


Baby steps

Watered-down accommodations bill offers pregnant workers insufficient safeguards

The stars seemed aligned this year for Indiana to finally adopt rules requiring employers to provide accommodations for pregnant workers.

At least 29 other states have in place common-sense requirements that workers be allowed light-duty assignments, modified schedules and time off. Gov. Eric Holcomb has long supported such measures, and legislators seemed poised to seriously consider updating state law to protect vulnerable workers.

Those efforts have fizzled, though, and some lawmakers – including the author of a competing measure – now are backing a milquetoast pregnancy accommodation bill that wouldn’t provide accommodations.

House Bill 1309 cleared the Employment, Labor and Pensions Committee by a 12-1 vote last week and now goes before the full chamber. Authored by Karen Engleman, R-Georgetown, the bill simply allows workers to ask for help and requires businesses to respond to employees’ requests.

Employers don’t have to comply with the requests, according to the bill.

That does nothing for pregnant workers or the state, which has been trying to improve low rankings on maternal health and infant mortality.

“Already, under existing law, a pregnant worker who needs a small change at work can ask for an accommodation,” Deborah Widiss, an Indiana University law professor who teaches a class on employment discrimination, said in an email. “Some employers grant such requests, but many do not. We’ve heard from women across Indiana, and in other states, who have asked for simple things like being able to sit on a stool, or avoid heavy lifting, and been told no. This can place the woman in the impossible position of having to choose between her job and taking steps to protect the health of her pregnancy.”

She testified at a committee hearing, telling members a better idea is to pass House Bill 1358. That bill, written by Rep. Sharon Negele, R-Attica, would require employers to offer “reasonable employment accommodations” already provided under law in states including Kentucky and Tennessee.

Lawmakers including Fort Wayne Republican Martin Carbaugh disagreed, though, and sent the weaker version to the House. Negele also endorsed HB 1309 at the hearing, calling it “a good step in the right direction.”

It so far is the only pregnancy accommodations measure to gain headway in the General Assembly. HB 1358 has not received a hearing, and a similar bill in the Senate also hasn’t moved from committee.

“It is both confusing and provides no substantial support for pregnant workers,” said Tracey Hutchings-Goetz of advocacy group Hoosier Action. “We are pushing for HB 1309 to be meaningfully amended to offer real protections for pregnant workers and clarity for employers or that HB 1358 or SB 246 will move forward.”

Jessica Fraser, director of the Indiana Institute for Working Families, agreed.

“Women who cannot afford to lose their job, but need small accommodations, may be afraid to ask their employer for adjustments, or may continue working in dangerous conditions,” she wrote in an email Monday. “Nationwide, an estimated 250,000 pregnant women are denied small accommodations each year.”

The lack of movement on a substantive bill to help pregnant workers is a missed opportunity, and not just for employees who might not get the help they need.

House Bill 1309 also could lead to confusion among employers, and Widiss said that could lead to costly lawsuits.

“1309 suggests that employers are not required to provide accommodations,” she said. “But state law cannot supersede federal laws, and under federal sex and disability laws employers often are required to provide an accommodation. Existing federal protections are not comprehensive, but they will often apply. Therefore, if an employer just looks at the Indiana law, and thinks it’s OK to deny an accommodation request, the employer may face years of litigation in federal court.”

Holcomb, in a recent news conference, seemed resigned to not seeing a strong accommodations bill on his desk this year, even though he identified it as a priority in his State of the State address last month.

“Message received from upstairs,” he said, referring to lawmakers. “I’m going to support a step in the right direction.”

Indiana should do better.

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