A new federal law, the Pregnant Workers Fairness Act (PWFA), goes into effect on June 27, 2023. The PWFA requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth or related medical conditions, unless the employer can show that the accommodation will cause the employer an “undue hardship.” “Covered employers” include private and public sector employers with at least fifteen employees, Congress, federal agencies, employment agencies and labor organizations.
What Does the PWFA Require?
Under the PWFA, a “reasonable accommodation” is generally defined as a change to the work environment or the way things are usually done at work. Although the PFWA does not provide any specific examples of reasonable accommodations that may be required, it directs the EEOC to issue regulations to carry out its provisions including “examples of reasonable accommodations.” Those regulations are expected to be issued within one year of the PWFA’s enactment. In the meantime, a report on the PWFA by the House Committee on Education and Labor provides several examples of possible reasonable accommodations. These include providing workers with:
- the ability to sit down on the job or drink water;
- parking spaces closer to the jobsite;
- flexible hours;
- appropriately sized uniforms and safety apparel;
- additional break time to use the bathroom, eat and/or rest;
- leave or time off to recover from childbirth; and
- the ability to be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
Covered employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is a significant difficulty or expense for the employer.
Under the PWFA, covered employers are prohibited from:
- Requiring an employee to accept an accommodation without first discussing the accommodation;
- 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 keep working;
- Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
- Interfering with any individual’s rights under the PWFA.
Interaction with Existing Laws
The PWFA applies only to accommodations. Existing laws enforced by the Equal Employment Opportunity Commission (EEOC) make it illegal to discriminate against workers on the basis of pregnancy, childbirth or related medical conditions. The PWFA does not replace or nullify any federal, state or local laws that are more protective of workers affected by pregnancy, childbirth or related medical conditions.
A pregnant worker who needs an accommodation before June 27, 2023 may, however, have a right to receive an accommodation under another federal or state law. For example, workers affected by pregnancy, childbirth or a related medical condition may be able to get an accommodation under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act (ADA). Therefore, until June 27, 2023, the EEOC will continue to accept and process Title VII and/or ADA charges involving a lack of accommodation regarding pregnancy, childbirth or related medical conditions.
Although the PWFA does not go into effect until June 27, employers should take steps now to prepare for the expanded rights of pregnant workers. Specifically, employers should review and revise their policies on reasonable accommodation to include reasonable accommodations for workers who have known limitations related to pregnancy, childbirth or related medical conditions. In addition, managers and human resources personnel should be trained to recognize situations in which the PWFA may require a discussion with a worker regarding the need for a reasonable accommodation. Employers may also wish to contemplate what reasonable accommodations may be available in their specific workplace for conditions covered by the PWFA. Finally, employers should look out for the expected regulations that will clarify the law and provide more specific examples of accommodation and the accommodation process.