Effective June 27, 2023, the U.S. Legislature passed the Pregnant Workers Fairness Act (PWFA), which prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions.[1]
Specifically, the PWFA declares that it is an unlawful employment practice to:
- Fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an employer’s operation.
- Require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process.
- Deny employment opportunities based on the need of the employer to make such reasonable accommodations to a qualified employee.
- Require such employees to take paid or unpaid leave if another reasonable accommodation can be provided.
- Take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.
A qualified employee is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position, with specified exceptions. The PWFA defines “reasonable accommodations” and “undue hardship” the same as under the ADA. Specifically, “reasonable accommodation” is defined as a modification or adjustment to a job or the work environment that enables an employee with a disability an equal opportunity to successfully perform a job and “undue hardship” is defined as an action requiring significant difficulty or expense for the employer, when considered in light of a number of factors, including the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation.
While the PWFA applies to known limitations related to pregnancy, childbirth, or related medical conditions, it does not apply to pregnancy itself. Such “known limitations” must be a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of disability specified by the ADA.
The PWFA sets forth enforcement procedures and remedies that cover different types of employees in relation to such unlawful employment practices. The PWFA also prohibits retaliation against any employee because such employee has opposed any act or practice made unlawful by the PWFA or because such employee made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the PWFA.
The PWFA has specified that within one (1) year after its effective dated, the Equal Employment Opportunity Commission (EEOC) is required to issue regulations, which shall provide examples of reasonable accommodations that shall be provided to affected employees unless the employer can demonstrate that doing so would impose an undue hardship. While the EEOC has not come out with such regulations yet, in the EEOC’s Frequently Asked Questions (FAQ), the EEOC highlighted some examples, such as: the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
Employers should review their employment policies and revise them, if necessary, to comply with the provisions of the PWFA. Our office remains ready to answer any questions or assist you in determining how individual situations should be addressed. Please contact any of the firm’s Labor Relations and Employment Law or Education Law attorneys for assistance.
[1] Note that the PWFA supplements other laws that apply to employees affected by pregnancy, childbirth, or related medical conditions, such as Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).
