A new Federal law, known as the Pregnant Workers Fairness Act (the “PWFA”), expands the employer’s duty to accommodate pregnancy-related conditions. The EEOC propounded new Proposed Regulations on August 7, 2023, to enforce this new law. The public can submit comment on the Proposed Regulations by October 10, 2023.
Generally, employers covered by the PWFA (which like the include private and public sector business with 15 or more employees, as well as employment agencies and labor organization) must provide reasonable accommodations to employees and applicants for “known limitations” related to pregnancy, child birth or related medical conditions, unless it could cause the employer an undue hardship. The PWFA is similar to yet different from the Americans with Disabilities Act (the “ADA”) which requires employers to accommodate workers with “disabilities”.
Here are some of the important similarities and distinctions:
Perhaps most fundamentally, the term, “known limitation”, is defined more broadly under the PWFA than the word “disability” is defined under the ADA. A “known limitation” for which an accommodation must be made is any “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” of the ADA. This means that less serious conditions that do not substantially limit a major life activity, must now be accommodated, under the PWFA if they arise out of pregnancy or child birth.
Just like under the ADA, however, a reasonable accommodation that causes “undue hardship” need not be accepted by the employer. That term is defined the same way as in the ADA, i.e., a significant difficulty or expense for the employer.
Also like the ADA, the PWFA requires an employer with notice of a requested accommodation related to child birth or pregnancy to engage with the employee in the interactive process to try to identify a reasonable accommodation. Unlike the ADA, however, the PWFA specifically prohibits requiring an employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided. In essence, this means an employer cannot force an employee to take a leave of absence if any other accommodation is available.
Also similar to the ADA, the person requesting the accommodation must be a qualified employee or applicant. This means that the person must be able to perform the essential functions of the employment position, either with or without an accommodation. But, the PWFA liberalizes the standard from what employers are used to under the ADA. It specifies that a person is qualified per se if the inability to perform an job essential function is only “for a temporary period,” or if the inability could be “reasonably accommodated”, or if the essential function could be performed “in the near future.” The terms “temporary period” and/or “near future” are not defined in the statute. In this way, the PWFA is broader than the ADA, which generally does not apply to limitations caused by more transient, temporary medical conditions.
Like the ADA, the PWFA prohibits retaliation for requesting or using a reasonable accommodation. This includes denying employment opportunities to an employee, if based on the need of the employer to make the accommodation and/or taking any other action that is adverse to the terms, conditions or privileges of employment. Interfering with an individual’s rights under the PWFRA is also prohibited. As with other anti-discrimination laws, back pay, front pay costs, and reasonable attorney’s fees are available to plaintiffs who succeed in a claim brought under the PWFA.
The EEOC is responsible for enforcement of the PWFA and it has taken a number of actions to that end:
First, the EEOC has issued a revised “Know your Rights: Workplace Discrimination is Illegal” poster which incorporates relevant information from the PWFA. A physical copy of the notice should be posted in a conspicuous location in the workplace where other notices and information are customarily posted and accessible to applicants and employees. Employers should also post the notice electronically in a conspicuous location on its website or other digital location so that applicants and employees can access the information remotely.
The EEOC has also published a list of possible accommodations required by the PWFA including:
- 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.
Most recently, on August 7, 2023, the EEOC announced the publication of proposed regulations on which the public can submit comments on or before October 10, 2023 . In the meantime, it also announced it is accepting complaints for violations of the PFWA. The EEOC also published additional resources, called “What You Should Know About the Pregnant Workers Fairness Act,” including a webinar for employers, tips for workers to request accommodations, and a short video series to help employers and workers understand the new law.
What’s next? There are a number of simple things employers should take away:
- Post the new, revised notice incorporating the PWFRA, electronically and physically, as soon as possible.
- Review your policies and practices to make sure they comply with the new obligations under the PWFA.
- Submit a comment by the October 10, 2023, deadline to let lawmakers know about the likely impact this new law and new Proposed Regulations will have on your business.
- At the end of the day, your policies will need to comply with the PWFA and however the Proposed Regulations may be finalized. This includes, among other things, ensuring your handbooks account for PWFA obligations as well as ADA obligations.
The bottom line is that employers must make sure they understand their broader, more expanded duties to accommodate workers with limitations related to pregnancy and child birth. Seek your own legal counsel.
The above is for news and information only. Other laws that may apply to workers affected by pregnancy, child birth or related medical conditions, for example Title VII, the ADA, the FMLA, the Federal PUMP (Providing Urgent Maternal Protections for Nursing Mothers) Act, as well as state laws addressing these same matters, are unaffected. Employers must comply with all of these laws as well as the new PWFA.