The Pregnant Workers Fairness Act (PWFA) is a new federal law that requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”
”Covered employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.
The PWFA applies only to accommodations. Existing laws that the EEOC enforces make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions.
The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities have laws that provide accommodations for pregnant workers.
The PWFA goes into effect on June 27, 2023. The EEOC is required to issue regulations to carry out the law.
The PWFA protects employees and applicants of covered employers who have known limitations related to pregnancy, childbirth, or related medical conditions.
What are some examples of reasonable accommodations for pregnant workers?
“Reasonable accommodations” are changes to the work environment or the way things are usually done at work. When determining possible reasonable accommodations, employers may consider:
- The ability to sit and drink water;
- Closer parking;
- Flexible hours;
- Appropriately sized uniforms and safety apparel;
- Additional break time to use the bathroom, eat, and rest;
- Leave or time off to recover from childbirth; and
- Reassignment from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
Covered employers are required to provide reasonable accommodations unless the employer can demonstrate that the accommodation would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer. To determine whether an action would cause an undue hardship, an employer may consider its size, financial resources, nature, and structure of its business.
What else does the PWFA prohibit?
Covered employers cannot:
The Act also prohibits covered employers from conduct such as:
- Requiring an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
- Denying a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
- Requiring an employee to take leave if another reasonable accommodation can be provided that would allow the employee to continue working;
- Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in an PWFA proceeding (such as an investigation); or
- Interfering with any individual’s rights under the PWFA.
What other federal laws may apply to pregnant workers?
Other laws that apply to workers affected by pregnancy, childbirth, or related medical conditions, include:
- Title VII (enforced by the EEOC), which:
- Protects an employee from discrimination based on pregnancy, childbirth, or related medical conditions; and
- Requires covered employers to treat a worker affected by pregnancy, childbirth, or related medical conditions the same as other workers similar in their ability or inability to work;
- The ADA (enforced by the EEOC), which:
- Protects an employee from discrimination based on disability; and
- Requires covered employers to provide reasonable accommodations to a person with a disability if the reasonable accommodation would not cause an undue hardship for the employer.
- While pregnancy is not a disability under the ADA, some pregnancy-related conditions may be disabilities under the law.
- The Family and Medical Leave Act of 1993 (enforced by the U.S. Department of Labor), 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) (enforced by the U.S. Department of Labor), which broadens workplace protections for employees to express breast milk at work.
How does the Pregnant Workers Fairness Act differ from existing laws under the Americans with Disabilities Act and Pregnancy Discrimination Act?
Currently, existing law provides only for limited accommodation rights to employees based on pregnancy/potential intended pregnancy, childbirth, etc. The PWFA complements and expands upon these existing laws, including the Pregnancy Discrimination Act (PDA), and the Americans with Disabilities Act (ADA) to be more in line with — and in some respects, more expansive than — those provided to qualified individuals with disabilities under the ADA and PDA. The PWFA also aligns with state laws that provide additional protections for pregnant workers.
Keep in mind, the PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions.
The PWFA differs from both the PDA and the ADA in several important respects:
- Under the PWFA, an employee’s pregnancy-related medical restrictions no longer must rise to the level of a disability in order to warrant accommodation (as required by the ADA), nor is the duty to accommodate a pregnant employee dependent on whether the employer accommodates other employees who are “similar in their ability or inability to work” (as required by the PDA).
- Under the PWFA, employers are prohibited from requiring qualified employees “to take paid or unpaid leave if another reasonable accommodation can be provided. In effect, this means that employers may only requirean employee to take leave as a last resort if there are no other reasonable accommodations that can be provided absent undue hardship. (Employers may, of course, offer leave as an accommodation to the extent the employee herself prefers leave).
- Under the PWFA, employers must accommodate pregnant employees even if they cannot perform the essential functions of their positions so long as their inability to do so is for a “temporary period” and that essential job function can performed in “the near future,” if the inability to perform the essential function can be reasonably accommodated. The PWFA thus goes beyond the ADA, which only requires accommodation to the extent the individual “can perform the essential functions of the employment position that [she] holds or desires.”
What now?
- Employers should take the following steps immediately to prepare for compliance with the PWFA:
- Be alert for proposed regulations issued by the Equal Employment Opportunity Commission.
- Provide training to all supervisors/managers who will have a role in the reasonable accommodation process including receiving or handling accommodation requests under the PWFA;
- Update policies to include the right to reasonable accommodation for physical and mental limitations arising out of pregnancy, childbirth, or related medical conditions; and
- Create or obtain a new form that is separate from the forms used generally for ADA accommodations in the workplace that employees can use to request accommodation under PWFA.