Congress signed The Pregnant Workers Fairness Act (PWFA) into law December 29, 2022, which went into effect on June 27, 2023. Discriminating against pregnant workers was already prohibited under the Pregnancy Discrimination Act of 1978 (PDA), which amended Title VII of the Civil Rights Act of 1964 (Title VII). Furthermore, the Americans with Disabilities Act of 1990 (ADA) requires that employers provide reasonable accommodations to employees with qualified disabilities. Until now, certain conditions related to pregnancy could qualify as disabilities under the ADA. However, the ADA did not cover pregnancy itself and many other common associated conditions. Now, the PWFA will provide additional protections and rights to pregnant employees.
Here’s what you need to know:
Firstly, the PWFA will protect employees and applicants of “covered employers” who have known limitations related to pregnancy, childbirth, and related medical conditions. “Covered employers” include both private and public sector employers with a minimum of 15 employees.
Accordingly, employers must provide “reasonable accommodations” to such covered workers, unless such accommodation will cause the employer an “undue hardship.” The definition of a reasonable accommodation mirrors that in the ADA, i.e., 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. This is generally determined by engaging in the interactive process between a covered employee and employer.
What is a “Reasonable Accommodation?”
While the EEOC has not issued official regulations relating to the PWFA, they did release a set of FAQs, that provided examples of possible accommodations. These examples include:
- 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;
- Be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
Furthermore, covered employers are prevented from doing any of the following:
- 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 opportunity 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 let the employee keep working;
- Retaliating against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceedings;
- Interfering with any individual’s rights under the PWFA.
Indeed, nothing in the PWFA limits any additional protections granted to workers by state or local governments. Therefore, employers should be sure to check your local rules when making accommodations for pregnant workers as well.
Next steps for employers to ensure compliance:
- Review and update employment policies and handbooks to ensure compliance with the PWFA and state laws.
- Train managers and human resources departments to understand the requirements of the PWFA and recognize situations where accommodations under the PWFA may be appropriate.
- Proactively think about what workplace accommodations could fit their business and employees.
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