The Pregnant Workers Fairness Act (PWFA), a new federal law protecting the rights of pregnant workers, takes effect on June 27th. The bill was signed into law at the end of 2022 to require employers to provide reasonable accommodations to pregnant employees. The law, in conjunction with the PUMP Act, expands the rights of pregnant workers.
Although the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act, prohibited pregnancy discrimination, the Pregnancy Discrimination Act omitted language requiring employers to provide reasonable accommodation on the job. Beyond discrimination, the Americans with Disabilities Act of 1990 (ADA) requires employers to provide reasonable accommodations based on certain conditions related to pregnancy if the condition qualified as a disability. The ambiguous and absent language clarifying reasonable accommodation based on pregnancy resulted in numerous lawsuits over the decades to determine what obligations employers had to their pregnant employees, if any.
What the Law Requires and its Protections
To fill the gap between the two laws, the Pregnant Workers Fairness Act (PWFA) was signed into law at the end of 2022. The PWFA will require employers to provide reasonable accommodation for:
“The known limitations related to pregnancy, childbirth, and related medical conditions of a qualified employee.”
A reasonable accommodation has the same definition as assigned in the ADA, meaning a “modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process.”
Omitted from the PWFA are any specific examples of what a reasonable accommodation may be, or when they are appropriate. Instead, the PWFA delegates enforcement to the U.S. Equal Employment Opportunity Commission, including the issuance of guidance on the matter.
The new will apply to employers with 15 or more employees and require that employers provide a reasonable accommodation to workers for known limitations relating to pregnancy. Similar to the PUMP Act, employers may be exempt if accommodation would cause an undue hardship. An “undue hardship” is a significant difficulty or expense for the employer.
What Employers Need to Know Now to Comply
Although no legislative guidance is available under the PWFA, the EEOC has highlighted examples of what employers can begin to consider when instituting reasonable accommodations for pregnant employees. This includes:
- The ability to sit
- Ability to drink water
- Access to closer parking
- Flexibility in work hours
- The provision of “appropriately sized uniforms and safety apparel”
- Additional break time allowances for bathroom use, eating, or resting
- Use of leave to recover from childbirth
- Excusal from “strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy”
Moreover, the PWFA makes clear employers are prohibited from:
- Requiring covered employees to “accept an accommodation other than any reasonable accommodation arrived at through the interactive process.”
- Denying “employment opportunities based on the need” to “make reasonable accommodations” to covered employees.
- Requiring covered employees “to take leave, whether paid or unpaid, if another reasonable accommodation can be provided.”
- Taking “adverse action in terms, conditions, or privileges of employment against” or retaliating against covered employees requesting reasonable accommodations.
- Interfere with any individual’s rights under the PWFA.
Who and What is Covered by the PWFA?
The PWFA protects employees and applicants of those covered employers who have known limitations related to pregnancy, childbirth, or related medical conditions. The specific limitations and related medical conditions have not yet been determined by the EEOC but the PWFA explicitly does not tie “known limitations” to the definition of a “disability” under the ADA, meaning the term applies to a broader range of conditions than those covered under the ADA. Additional guidance should be expected within one year of the law going into effect.
What Other Laws Should Employers Consider?
With the recent legal changes for pregnancy, employers should re-evaluate their employee policies and procedures. In addition to the PWFA, employers should consider:
- Title VII: protects employees from discrimination based on pregnancy, childbirth, or related medical conditions.
- ADA: protects an employee from discrimination based on disability and requires employers to provide reasonable accommodations to a person with a disability. Though pregnancy is not a disability under the ADA, some known related conditions are.
- The Family and Medical Leave Act of 1993: provides covered employees with unpaid, job-protected leave for certain family and medical reasons.
- The PUMP Act: broadens workplace protection for employees expressing breast milk at work.
- Local and State laws and regulations.
For additional information on any of the aforementioned regulations or for assistance creating or reviewing maternity and other leave policies for compliance, please contact Rob Gilmore (RSG@kjk.com; 216.736.7240) or another attorney within KJK’s Labor & Employment practice group.