The Pregnant Workers Fairness Act
What is the New Law
The Pregnant Workers Fairness Act (PWFA) is a new 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 accommodations will cause the employer “undue hardship.”
The PWFA applies only to accommodations. Under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discriminateion Act, employers are prohibited from discrimination on the basis of sex, which includes pregnancy discrimination. “Pregnancy” discrimination under Title VII can be based on:
Current Pregnancy
Past Pregnancy
Potential Pregnancy
Medical conditions related to pregnancy or childbirth including breastfeeding/lactation
Having or choosing not to have an abortion
And birth control/contraception.
Under the Americans with Disabilities Act (“ADA”), employers are prohibited from discriminating against an applicant or employee based on a disability, including a disability related to a pregnancy that develops during pregnancy. While pregnancy itself is not a disability under the ADA, some pregnant workers may have one or more impairments related to the pregnancy that qualify as a disability under the ADA. If so, the employer may have to provide that worker with a reasonable accommodation for the pregnancy-related disability. Additionally, the ADA requires that employer keep all medical records and information, including those that are pregnancy-related, confidential and in separate medical files.
Under the PWFA, covered employers cannot:
1. Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer
2. Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation
3. Require an employee to take leave if another reasonable accommodation can be provided that would le the employee keep working
4. Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in the PWFA proceeding (such as an investigation); or
5. Interfere with any individual’s rights under the PWFA.
Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is defined as a significant difficulty or expense for the employer.
Lastly, it is important to note that the PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. As such, employers should compare the PWFA with existing laws to ensure that they are upholding standards under any and all applicable laws that are more protective of covered individuals.
Who does it Affect?
The PWFA protects employees and applicants of “covered employers” who have known limitations related to pregnancy, childbirth, or related medical conditions. A “covered employer” includes private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations.
When Does it Go Into Affect?
On June 27, 2023, the EEOC started accepting charges under the PWFA. For the PWFA to apply, the situation complained about in the charge must have happened on June27, 20203, or later.
Next Step For Employers
All covered employers should first take action by updating employee handbooks and notifying existing employees of the changes to the law. Additionally, the employer should take note of what “reasonable accommodations” covered employees would be entitled to. The House Committee on Education and Labor Report on the PWFA provides several examples, such as:
The ability to sit or drink water
Closer parking,
Flexible hours,
Appropriately sized uniforms and safety apparel,
Additional break time to use the bathroom, eat, and rest,
Take leave or time off to recover from childbirth
Excusal from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy
Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is defined as a significant difficulty or expense for the employer.
Lastly, it is important to note that the PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. As such, employers should compare the PWFA with existing laws to ensure that they are upholding standards under any and all applicable laws that are more protective of covered individuals.