As of June 27, 2023, the Pregnant Workers Fairness Act (the “Act” or “PWFA”) provides increased protection for workers seeking accommodation due to pregnancy. The Act is administered and enforced by the EEOC and requires “covered employers” to provide reasonable accommodations for an employee’s limitations due to pregnancy, childbirth, or a related medical condition, unless the employer can demonstrate that accommodation causes undue hardship, as defined in the Americans with Disabilities Act. Unlike the ADA, the PWFA requires accommodations for known limitations stemming from pregnancy or childbirth, whether or not that condition meets the definition of disability. Though the Act went into effect June 27, 2023, as of the date of this blog, regulations relating to the Act’s enforcement have not been finalized. The proposed regulations are open for comment through October 10, 2023.
Who is a “Covered Employer” under the PWFA?
The PWFA applies to public and private employers with 15 or more total employees, all state and federal employers, employment agencies, and labor organizations.
What Protections Does the Act Provide Pregnant Employees?
The PWFA makes it an unlawful employment practice to:
- Fail to make reasonable accommodations for “the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship”;
- Require an employee with the relevant conditions to accept accommodations not created through an interactive process as described in the ADA (generally a two-way conversation between the employee and employer);
- Deny employment opportunities to a qualified employee due to the need to make accommodations due to a condition related to pregnancy or childbirth;
- Require an employee to take leave (paid or unpaid), where a reasonable accommodation can be provided; or
- Take adverse employment action against an employee for using accommodations due to conditions stemming from pregnancy and childbirth.
The Act also expands who is considered a “qualified employee” beyond the definition provided by the ADA (which defines a qualified employee as “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position”), to also include an employee or applicant that is unable to perform essential functions temporarily, if they could be performed in the “near future” and this inability to perform an essential function could be “reasonably accommodated.”
What Accommodations Must Employers Provide to Employees Under the Act?
Though yet to be finalized, the PWFA proposed regulations state that, unlike the ADA, an employer cannot dispute an accommodation request by arguing that a similar accommodation has not been provided to other employees in the past if the accommodation is otherwise reasonable and is not demonstrated to create undue hardship.
The proposed regulations also explain the EEOC’s view that requests for pregnancy and childbirth related accommodations should be allowed to be requested through multiple straight forward avenues. The regulations list “simple accommodations” like additional water, meal or bathroom breaks, being allowed to carry water and drink as needed, or being provided a chair to sit in at a standing role, that should be put in place swiftly without a complicated approval process. In addition, employers who require supporting documentation only must do so where it is reasonable and should accommodate employees who may have a delay in procuring documentation by considering possible interim accommodations.
What Other Laws Provide Protection to Pregnant Workers?
Many states and localities have laws that provide protection for pregnant employees. The Act does not replace federal, state, or local laws that provide additional protection for pregnant workers beyond what the Act requires.
Federal laws that apply to workers affected by pregnancy, childbirth, or related medical conditions, include:
- Title VII, which protects pregnant/post-partum employees from discrimination based on pregnancy, childbirth, or related medical conditions; and requires employers to treat pregnant/post-partum employees similar to other employees requiring reasonable accommodations;
- The ADA, which protects an employee from discrimination based on disability (including some conditions stemming from pregnancy, but not pregnancy itself); and requires covered employers to provide reasonable accommodations (unless the employer can prove undue hardship);
- The Family and Medical Leave Act, which provides covered employees with unpaid, job-protected leave for certain family and medical reasons; and
- The PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act), which broadens workplace protections for employees to express breast milk at work.
Employers should review existing policies, handbooks, and procedures discussing accommodations at work in advance of regulations being released to make sure human resources and management are aware of making a good faith effort to comply with the requirements of the PWFA.
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